Full Judgment
K.K. Gupta, J.
1. Faqir Singh petitioner has been detained for a period of 24 months under Section 8 of Public Safety Act, (for short Act hereinafter), vide order No. 54/88 dated November 22, 1988, passed by the District Magistrate, Jammu. The grounds on which such detention has been ordered are given in the grounds of detention as under:
You are a notorious criminal and anti-national element and have indulged in repeated acts of espionage, clandestine border crossing, smuggling of arms to Punjab terrorists from across the border, smuggling of gold etc. You have crossed the border number of times and gone to Pakistan for fetching arms/ammunition for terrorists operating in Punjab. You were involved in a double murder case of police station Lopogi District Amritsar when you shot two persons namely Chanan Singh and Bawa Singh during the year 1970. So you were convicted and sentenced to life imprisonment. You were released from the jail after completion of term of your imprisonment in the year 1980. In jail you had contacts with one Gurdev Singh who was a resident of village Kolowal (there you were also originally a resident) and undergoing imprisonment. After release from jail you started smuggling operations along with said Gurdev Singh. You migrated to village Jamalpur during the year 1983, but you continued. Your activities across the border along with said Gurdev Singh. Bachan Singh and one Kuki Christian of Punjab. During the year 1986 while crossing over the border said Gurdev Singh and Kuki were killed in an encounter with the BSF and Bachan who was later on arrested by the police was detained under MISA in Punjab. When Bachan Singh came out after the completion of the term of his detention, you again started the activities along with him. During the year 1988 one Butti Pehlwan, a resident of Sialkot, Pakistan and Kingpin of smugglers' gang came to your house and took you to Jallandur. At Railway Station Jallandur, the said Butti Pahalwan introduced you to one Babu and it was decided that Babu would be providing you American dollors which you shall be using in Pakistan for bringing in gold and arms.
After the death of your two associates at the border, you have chosen the route of your smuggling through R.S. Pura border. Some of your recent activities are enumerated as under:
1. That on 4-10-88 you along with one Darshan Singh r/o village Kanwan Teh. Pathankot came in truck No. 4524/PAT from Pathankot and crossed the border from Sai and went to Pakistan. Both of you came back on 7-10-88 with 2/3 kgs. of Gold, some A-K-47 rifles and went to Pathankot. There rifles were given to a terrorist of District Amritsar and gold was given to said Babu at railway station Jallandar. This information was reliably learnt through D. S. B. Distt. Jammu or 10-10-88 which is evident from the special diary of DSB dated 10-10-1988 and weighbridge slip dated 7-10-88 issued to M/s. Ridhi Enterprises Hatli Mone Kathua pertaining to truck No. 4524 PAT which was recovered, from your factory located at Kathua. Copies of special diary of DSB and weigh bridge slip are at annexed R-1.
2. That on 9-10-88 you along with your Associate Darshan Singh and one hardcore terrorist of District Amritsar came in White Maruti car which did not carry any number plate and again crossed the border from Dewan Garh side to Pakistan. After smuggling in 3/4 Kgs. of gold, pistols; revolvers and some quantity of ammunition you returned in the Maruti Car to Punjab. You disposed of these arms and ammunition to the terrorists through your companion terrorists whereas one revolver and gold was handed over to Babu at railway station Jallander on 10-10-78 (sic). This information was reliably learnt by DSB Jammu on 11-10-88 which is evident from special diary of DSB dated 11-10-1988, copy of which is annexed as R-II.
3. That on 12-10-1988 a telephonic message from Shri Harbans Lal Inspr. Police CID (CI) Sub-Divi. R.S. Pura was received at R.S. Pura that you along with Darshan Singh caste Rajput r/o Konwan Teh. Pathankot had crossed over to Pakistan along with some secret documents through Charoi border and you were likely to return to this side along with arms/ammunition and gold etc. at about 2 a.m. on 13-10-1988. On this information a case FIR No. 282/88 Under Section 2/25 IAA Under Section 3 of Passport (Entry into India) Act under Section 4 of Terrorists and Disruptive Activities Act was registered at P/S R.S. Pura. Accordingly nakabandi was organised at R.S. Pura, Miran Sahib, Kotli Mian Fateh, Bishnah and Saror. It was about 4.30 a.m. on 13-10-1988 when you were found coming from border side on your cycle at Kotli Mian Fateh. The naka santry signalled you to stop whereupon you threw aside your bicycle and started running back, one driver of the matador of P/S Bishnah chased you and in a valiant attempt caught hold of you. On your arrest personal search was made and one pistol made in Spain Mark No. 125729 loaded with 12 live cartridges, one denin cloth, biscuits, one wallot containing Rs. 2500/- IC and R. 20/- Pak currency were seized on spot. During interrogation you confessed that you had brought these contraband goods from Pakistan and that your white maruti car was parked on the R.S. Pure Satwari road. On your disclosure the said car was recovered and seized. Accused Darshan Singh who was in the car and was your associate was also arrested. Copy of FIR, seizure memos, confessional statement of yours and extract of interrogation report of JIC Jammu are annexed as R-III.
2. Petitioner has challenged the order of his detention on various grounds. His plea is that he is running a small scale unit at Kathua for manufacture of fertilizer and in connection with that business he comes to R.S. Pura for collection of raw-material for his factory. He was arrested on 1-10-1988 near Miran Sahib when he was coming on his car along with his driver Darshan Singh and was taken to police station R.S. Pura where he was detained for more than one month. With great difficulty he contacted his relatives who came and approached special Judge under Enemy Agents Ordinance for shifting him to Central Jail Jammu from R.S. Pura and the Judge allowed his that application. Afterwards bail application was also moved before that Court and he was ordered to be released on bail on Nov. 24, 1988. When he was still in detention impugned order was passed.
3. Petitioner's further case is that his order of detention is bad in law and illegal, unconstitutional, arbitrary, passed without application of mind. He belongs to village Jamalpur Tehsil Pathankot and has never been involved in any case, even of petty nature in the State of Jammu and Kashmir. The allegations levelled against him regarding collection of American dollors for buying gold are absolutely absurd, baseless, vague and appears to have been levelled without application of mind. The allegations have also been levelled against him merely on presumptions and assumptions. The detention order was passed while he was in lock up and there was no evidence on his involvement in any activity.
4. Shri S. S. Kapoor, District Magistrate, Jammu has filed reply affidavit averring that his predecessor-in-office, passed the impugned order detaining the petitioner by invoking provisions of the Act as activities of the detenu were prejudicial to the maintenance of security of the Slate. The detention order was approved by the Govt. on Dec. 1, 1988 and Advisory Board also confirmed the action of the District Magistrate. He has further stated in the affidavit that detention order was duly served upon the detenu in compliance to which the detenu was arrested and detained in Central Jail Jammu. According to him the grounds of detention and. dossier establish that the activities of the petitioner being gun-runner, indulging in espionage activities, having con tacts with Pak masters, supplying vital information to other side, remain prejudicial to the security of the State.
5. Sh. Brijmohan Additional Secretary to Government Home Department has also filed reply affidavit on behalf of the State mentioning therein that the government received copy of order No. 54/88 dated 22-11-88 from District Magistrate, Jammu detaining the petitioner for a period of 24 months and the government after due consideration of the case approved said detention order on Dec. 1, 1988. He has further stated that case of the petitioner was placed before the Advisory Board which, after hearing the detenu in person, opined that there was a definite nexus between the object of detention and grounds of detention and the Government on receipt of this opinion confirmed the detention order, Jagdish Chander Kotwal, Assistant Superintendent Central Jail, Jammu has also filed affidavit to the extent that the detention order was received from District Magistrate, Jammu and the petitioner after being detained in Central Jail Jammu was provided with grounds of detention and he was further informed that he was entitled to make a representation to the government against the said order.
6. I have heard the learned Counsel for the parties and perused the record before me. The first point raised by the learned Counsel appearing for the petitioner is that the grounds of detention in the present case are similar to those mentioned in the dossier supplied to the District Magistrate by the police and same are identical in nature which shows non-application of mind on the part of detaining authority. In support of his contention he has referred to 1988 Kash LJ 506. I have perused the dossier submitted by the Senior Superintendent of Police Jammu to District Magistrate, Jammu and the grounds of detention which form part of the order passed by the District Magistrate. Both are similar verbatim and grounds of detention are almost reproduction of the dossier prepared by the police. In case Noor-ud-Din Shah v. State of J. & K. 1988, Kash LJ 506 (supra), this Court in similar circumstances held the order to have been passed by the detaining authority without application of mind. I find no circumstance to deviate from this legal proposition. The detaining authority while passing the impugned order does not seem to have applied its mind properly.
7. The other point raised by the learned Counsel for the petitioner is that order of detention was passed by Sh. P. G. Chakraborty, the then District Magistrate, Jammu but despite the fact that he is posted at Jammu on a different assignment and available all the times, reply affidavit has been filed by Sh. S. S. Kapoor, the present incumbent, who has no personel knowledge about the satisfaction arrived at by the detaining authority at the relevant time when especially allegation was made in the petition regarding non-application of mind by that authority. In this regard he has relied upon : 1987 CriLJ988 and : 1981 CriLJ606 . There Lordships of the Supreme Court in these cases have held that where the allegation is non-application of mind by the detaining authority proper person to file affidavit is the District Magistrate who had passed the impugned order of detention or the person who was directly connected with making of the order to explain his subjective satisfaction and the grounds therefor.
8. In the present case petitioner has alleged non-application of mind on the part of the detaining authority Mr. Chakraborty, Distt. Magistrate, who passed the impugned order, is stated to have been transferred and posted as Excise Commissioner, Jammu. He is admittedly available in Jammu. He has not come forward to rebut the allegations levelled by the petitioner. Mr. Kapoor, his successor, has filed reply affidavit on the basis of record available with him and he has no personal knowledge for the subjective satisfaction arrived at by his predecessor in office. By non-filing affidavit of Sh. Chakraborty, a legal infirmity has certainly crept in which goes to the root of the case especially when allegation of non-application of mind on the part of detaining authority has been levelled,
9. Mr. D. C. Raina, appearing for the petitioner, has argued that the petitioner was arrested on October 13, 1988 in case, FIR No. 282/88 under Enemy Agents Ordinance and various other offences and was kept in police lock up for a long period when on application moved before Special Judge under the said Ordinance his custody was transferred to Central Jail, Jammu and thereafter his bail application was allowed by the Special Judge finding no prima facie case made out from the investigation conducted by the police for such a long time but in spite of these facts his detention was ordered under Public Safety Act without specifying the abovesaid facts which shows complete non-application of mind and subjective satisfacting on the part of detaining authority and in this manner impugned order requires to be quashed forthwith, Mr. Kapoor, learned Government Advocate has, however, contended that mere absence of the abovesaid facts in the grounds of detention does not invalidate the detention order and according to him on the release of the petitioner on bail their was every possibility of his indulging in activities prejudicial to maintenance of security of the State and in order to prevent the petitioner from doing so it was felt necessary to order his detention under the Act. I have considered these contentions raised by either side.
10. Admittedly petitioner was arrested in FIR No. 282/88 registered at Police Station R.S. Pura under Sections 3-EAO, 3-I.P.A., 3/4 TADA, 3/25 1. A. A. and 8/85 Gold Control Act. He remained in police custody when on an application moved by the petitioner Special Judge under Enemy Agents Ordinance on Nov. 17, 1988 ordered his transfer from police custody to judicial lock up. Petitioner filed separate application for grant of bail and the learned Special Judge on Nov. 24, 1988 finding no prima facie case made out against him, from the evidence collected by the police, regarding his indulging in disruptive activities released him on his furnishing bail bonds to the extent of Rs. 20000/- Earlier to this order when the petitioner was still under custody in the above referred case, District Magistrate, Jammu on Nov. 22,1988 passed the impugned order detaining the petitioners under Section 8 of the Act. The District Magistrate has not mentioned anything about earlier detention of the petitioner in the impugned order. Now we will have to see the consequences which will follow for this action of the District Magistrate.
11. Hon'ble Justice Dr. A. S. Anand (as he then was), in case Raman Kumar v. State of J. & K., 1983 Kash LJ 326 has elaborately dealt with such detention law relying upon : 1979 CriLJ1306 . It was held by his Lordship that the order is to be treated as passed in mechanical manner and without application of mind when detenu is in police custody at the time of passing of detention order and detaining authority not applying its mind to this aspect and also not considering possibility of launching of criminal prosecution against the detenu, In : [1982]3SCR522 while dealing with J. & K. Public Safety Act their Lordships have held that it is certainly non-application of mind by the District Magistrage when detenu already arrested and in Jail on suspicion that he had committed offences under Enemy Agents Ordinance and order of detention passed without showing its awareness. That order was held by their Lordships to be invalid. This Court followed similar principle in case Ghulam Nabi Mir v. District Magistrate Srinagar 1985 Kash LJ 88 : 1985 Cri LJ 625. Their Lordships in case Ramesh Yadav v. District Magistrate Etah : 1986 CriLJ312 have held as under:
On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If apprehension of the detaining authority was true, bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under National Security Act should not ordinarily be passed. We are inclined to agree with the counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. Impugned order, therefore, has to be quashed.
The above law propounded by the highest judicial forum of the country can be summarised in this manner. When the detenu is already in detention the detaining authority must show its awarness in the grounds of detention and must come with a plea that it was necessary to detain the individual in order to prevent his activities, prejudicial to the security of the State. Petitioner in this case was admittedly in judicial custody as he had been arrested under specific offences. A bail application had been moved by him which was being even contested by the State. Said application was then allowed. The District Magistrate while passing the impugned order remained quite silent about these important facts, which point out that either he was not informed about such facts or he intentionally remained silent. It amounts to the passing of order of detention without showing awareness on the part of detaining authority and it certainly makes the impugned order invalid.
12. Serious allegations have been levelled against the petitioner but it shows that the concerned authorities take such serious nature cases casually and fail to comply with legal requirements, which is making this Court helpless in maintaining detention order. The petition is allowed because of aforesaid legal infirmities and detention order quashed. Petitioner shall be set at liberty, if not required in any other case.