- (1.) The petitioner challenges the order of detention dated March 28, 1972 made under Section 3 of the Maintenance of Internal Security Act No. 26 of 1971 -hereinafter called 'the Act'. Initially he was arrested under the Official Secrets Act, 19 of 1923, and was remanded by the Magistrate on October 24, 1971. On November 19, 1971, the District Magistrate, Gurdaspur made an order of detention under Section 3 of the Act which was served on the petitioner while he was still in confinement under Section 3 of the Official Secrets Act. He was also served with the grounds of detention. The order of the District Magistrate, however, was not approved by the State Government and the petitioner was directed to be released in respect of his detention under the Act. The petitioner thereafter moved the Sessions Judge for bail and was directed on March 2, 1972 to be released on his executing a bail bond of Rs. 50,000/-. The bail bond furnished by him was accepted by the Sessions Court on March 14, 1972, on which date the petitioner was released from jail. On March 28, 1972, a fresh order of detention was passed by the District Magistrate, Gurdaspur; which order was approved by the State Government on April 4, 1972. It is alleged that from March 14, 1972 to February 12, 1973 the petitioner did not appear before the Court in spite of repeated directions and undertakings given by his counsel. His application for exemption from appearance was refused and thereafter on August 17, 1972 an application was made for taking action against him under S. 7 of the Act. On February 6, 1973 the detenu was declared a proclaimed offender. On March 12, 1973 he was arrested in Delhi and produced before a Delhi Magistrate who granted a transit remand for being produced before the Court at Batala and was accordingly produced before him on March l4, l973. On March 15, 1973, the detention order dated March 28, 1972, was served on him. Representations made by him were rejected by the Government on April 10, 1973, and finally on April 30, 1973, his detention was approved by the Advisory Board. The State Government confirmed the order of detention.
(2.) The contentions urged before us are better appreciated by a perusal of the grounds of detention. These are. "1. That you, Harjasdev Singh s/o Ujagar Singh, Jat r/o village Talwara, p/s Srihargobindpur born on 15-4-41 in village Talwara matriculated in 1962. joined Military Service on 28-8-63 as Sepoy Clerk and later promoted as Havaldar Clerk in November 1968, are Indian National. In February 1967 when you were transferred to 10th Infantry Div. HQ at Sujanpur and remained there till July, 1970. During this period. you. Harjasdev Singh have been collecting information regarding military units and conveying the same to Pak Intelligence Services. In return, you were suitably rewarded by the Pakistan Officers and in support of this, the following, facts have been duly proved against you: (i) That during October 1969, one Pritam Singh Jat r/o Baleem p/s Kalanaur allured you to indulge in espionage activities against India and give him Military intelligence and secret documents for passing on the same to his Pak masters for which you would be paid handsomely You felt tempted and gave your consent to do the job. Pritam Singh gave you Rs. 60/- and promised to come after a week. Pritam Singh again met you after about a week and you handed over to him a typed list of units under 10 Infantry Div. with their locations. You were paid Rs. 100/- more by Pritam Singh for this job. (ii) Again in the Month of November 1969, the above said Pritam Singh, contacted you at Sujanpur and paid you Rs. l00/ as your remuneration for supplying the list of staff officers at 10th Infantry Div HQ at Sujanpur and also one sketch or, tracing paper regarding Road routes from Pathankot to Akhnoor. (iii) Again in the month of December 1969, you supplied 10th Infantry Div. Exercise papers to Pritam Singh who promised to compensate you for this after receiving payment from his Pak masters. (iv) That in November 1970 when you were posted in 'A' branch HQ 67 Independent Infantry Brigade Company at Abohar, you were discharged from the Army due to your bad record. "2. That during May/June, l97I, Pritam Singh who was on one month leave from the 26th Battalian B.S.F.E. Company met you at your house and took you to Shakargarh, Distt. Sialkot (Pakistan) and produced you before Major Akhtar and Sub. Zafar there. You along with Pritam Singh crossed the border from the left side of Indian Picket Bohar Wadala onward by the side of Dhussi band and reached Pak Picket Takhatpur, wherefrom you were taken to Pak Security Office, Shakargarh in a jeep by Sub. Zafar. There Major Akhtar and Sub. Zafar talked with you in seclusion. You gave out all the details of 10th Infantry Div. to your knowledge to the Major. Your particulars were noted down on a printed form which was got signed by you and you were also got photographed, You passed on the following documents and Military Intelligence to the Pak Security Officers: (i) Deployment statement of the units under 25 Div and other connected with units other than those under 25 Div. (ii) There was no movement of the Army units in Dera Baba Nanak and Gurdaspur areas at that time. The Major gave you Rs. 200/- as your remuneration and assigned you the following task :- (i) To collect information about the postings and trainings of the officers under 10 Infantry Div. (ii) To collect any secret or top secret documents from any Army Officer. (iii) To collect any pamphlet about the Army training or containing technical number of the Indian Army units. Both you and Pritam Singh thereafter crossed over to India' via the same route. 3. In the month of September 1971, you alone crossed the Border via the same old route and met Major Akhtar and Sub. Zafar at Shakargarh and furnished the following documents and Military information to them: (i) Ammunition scale of the units under 10 Infantry Div. (ii) One pamphlet about the technical numbers of the Army Divisions, Brigades and units of Indian Army. (iii) About posting of Major General Jaswant Singh as l0 Inf. Div. 'Commander. (iv) About movement of No. 10 Inf. Div HQ from its previous headquarter at Sujanpur to the left side of the Dalhousie Road near Pathankot in the newly constructed barracks. You were paid Rs. 200/- for this service and further allotted the following task: (i) To collect information about the construction work of Railway line from Pathankot to Jammu via Kathua. (ii) 1300 MM gun supplied by Russia with which unit of the Indian Army and the location of that unit. (iii) Location of 4 Horse units. (iv) To collect Army new or old photo of any V.I.P. about his visit at 10 Inf. Div. HQ or any unit under the Div. You were then made to cross to India with a Pak national named Akhtar who was appointed a courier for collecting documents and military intelligence from you. 4. That you along with Akhtar reached Pathankot. Akhtar stayed there while you left for your village. After two days, you returned to Pathankot and gave Akhtar the following documents to be delivered to your Pak masters: (i) Three photos of Shri Swaran Singh the then Defence Minister on V.I.P. visits in Akhnoor sector in 3 different poses with G.O.C. 10th Inf. Div. (ii) Location statement of the units under 26 Inf. Div. and connected units (iii) Two sketches on tracing papers of obstacle plan of Akhnoor Sector-Part I and Part II. (iv) 4 Horse units moved from Patiala to Madhopur area. 5. That on 23-10-71 you were arrested by the local police of p/s Srihargobindpur from your house in case FIR No. 178- u/s 30 S. Act. On search of your house, the following documents in connection with your activities prejudicial to the security of the State were recovered: (i) A list typed in English of officers ACRS to be reviewed by the Brigade Commander. (ii) One white paper i.e. printed letter pad of HQ Ambala Sub Area, Ambala Cantt. with formation sign of the Sub Area units (iii) A rough sketch about the road from Batala-Dera Baba Nanak Kalanaur towards village Pakiwar showing some villages prepared by you to go to and from Pakistan in connection with your espionage activities, incriminating documents, along with other papers 6. That on interrogation you have been found to be a Pak Spy. 7. That in case FIR No. 178 referred to in para 5 above, you have been released on bail by the District and Sessions Judge, Gurdaspur and it is now likely that you will continue your spying activities for the Pakistan Intelligence services or by crossing over to Pakistan, you are likely to divulge intelligence collected by you about our National vital installations, Military formations and Civil Defence forces, to Pak authorities which would be highly prejudicial to the security of the State in these days of Pak hostilities "
(3.) It was first contended that as no return was filed by the State Government, the petitioner is entitled to be set at liberty under Rule 5 of O. XXXV of the Supreme Court Rules; secondly, there is no nexus between the object of the order of detention and the grounds of detention; thirdly, a perusal of the grounds of detention will disclose that the order is really made under S. 3 (1) (a) (i) of the Act and not under Section 3 (1) (a) (ii) under which it is purported to be made, inasmuch as the acts alleged against the detenu would justify an order being made to prevent him from acting in any manner prejudicial to the Defence of India and cannot justify an order against him from acting in any manner prejudicial to the security of the State or the maintenance of public order. Finally, it was urged that since the grounds which formed the basis of the order of detention served on him on November 19, 1971 (hereinafter referred to as the first order) are identical with the grounds for detaining him under the impugned order, the impugned order is bad and his detention illegal.;