H.S.RAI, J. - (1.) HARBHAJAN Singh son of Mangal Singh has challenged his detention under the National Security Act on various grounds. The brief facts are that the petitioner was arrested vide detention order dated May 12, 1988, passed by the District Magistrate, Jalandhar, Annexure P. 1, on the grounds given in Annexure P. 2. The State Government vide order dated May 24, 1988, Annexure P. 3 revoked the detention ordered by the District Magistrate, but passed a fresh order of detention the same day on identical grounds, a copy of which is Annexure P. 5.
(2.) THE grounds of detention as given in Annexure P. 5 are as under: "(a) Baba Dalip Singh s/o Harchand Singh Jat r/o Roda, District Faridkot was arrested on 22 -11 -87 in case F.I.R. No. 86 dated 22 -11 -1987 under Section 26, Arms Act, 3/4/5 TDA (P) Act, P.S. Cantt. Jalandhar. On 22 -11 -1987, on interrogation by the Police, Baba Dalip Singh disclosed that he had received the amount of Rs. 1,50,00,000/ - out of the booty of Punjab National Bank, Ludhiana. Out of the said amount, Baba Dalip Singh gave Rs. 4,00,000/ - the amount of Rs. 3,00,000/ - was taken back from you by Baba Dalip Singh and Manjit Singh s/o Gurnam Singh r/o Sarinh in the month of April 1987 . You were arrested in this case on 8 -12 -87 and on the same day police recovered packets of currency notes worth Rs.1,00,000/ - in consequence of confessional statement made by you before Shri Swaran Singh S.P/Detc. Jalandhar. In the area of village Sarinh. The packets of currency notes recovered from you bore the seal of Punjab National Bank, Industrial Area, Ludhiana, and the signatures. (b) On 12 -8 -1988, A.S.I. Surinder Pal of P.S. Nukodar received information through reliable source that on 11 -3 -88 at about 9.30 p.m. you held a. secret meeting in your house in Village Serinh in which 8/10 Sikh persons participated out of which Balwinder Singh S/o Gurbachan Singh Jat r/o Tehli and Manjit Singh s/o Gurnam Singh Jat r/o Sarinh were identified. The meeting lasted for about one hour. While addressing the meeting you said that the Punjab Police is killing the Sikh Youths in faks encounters and is committing atrocities on the Sikhs. Those officers of the Police and C.R.P.F who are committing atrocities on the Sikhs, will not be spared. The shops of Bidi, liquor and meat will not be allowed to run in Punjab. The Punjab Governor is doing excesses with the Sikhs at the instance of the Central Government. The arms should be purchased by looting the Banks and other Government agencies. Terrorism should be spread to oust the Hindus from Punjab. You also said that Hindus should be massacred and ousted from Punjab. Balwinder Singh also made a similar speech in the meeting and the other participants endorsed your views. "(i) On account of the above said activities the President of India is satisfied that you should be detained with a view to preventing you from acting in the manner prejudicial to the maintenance of public order and security of State and interference with efforts of Government in coping with terrorist destructive activities and as such has passed in order for your detention with a view to preventing you, from indulging in such prejudicial activities in future. I have heard the learned counsel for the parties and gone through record. The case of the petitioner is that two F.I.Rs. were registered against him and he has been allowed bail in both the F.I.Rs. The detaining authority has not taken into account that he was an under - trial and had been allowed bail by the Court of competent justification. His grievance further is that the order has been passed without any application of mind on the part of the detaining authority. It is stated in the petition in paragraph No. 12 (ii) that the petitioner who allowed bail in F.I.R. No. 86, dated November 22, 1987 and F.I.R. No. 26 of 1987 under Section 395, Indian Panel Code, and the I detaining authority was not aware of the fact that the petitioner was granted bail in the above noted F.I.Rs. at the time of the passing of the detention order Sub -paragraph No. (ii) of paragraph No. 12 of the petition reads as under: "(ii) That the petitioner was granted bail in F.I.R. No. 86, dated 22 -11 -1987 and F.I.R No. 36 of 1987 under Section 396 of the Indian Penal Code. The detaining authority was not aware of' the fact that the petitioner was granted within the above noted F.I.Rs. at the time of the passing of the detention order. On this ground alone the detention is liable to be quashed." In reply, the District Magistrate, Jalandhar respondent No.2 stated as under: "(ii) In reply to this sub -para it is stated that the detenu was not in custody in any criminal case when the order of detention against him was passed by the competent authority. And Mr. V.V. Chadha, Under Secretary to Government of Punjab, stated as under: "(ii) That the contents of sub -para (ii) of para No. 12 of the petition is incorrect. The detention order was passed by D.M. Jalandhar on 13 -5 -88 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and security of State. The detenu was not in custody when the detention order against the petitioner was passed by the detaining authority. The detention order was passed - after perusal of the record and arriving at the subjective satisfaction by the detaining authority. There is a complete and close nexus between the prejudicial activities committed by the petitioner and the detention order."
(3.) TAKING the assertion in the petition and the reply filed by the respondents, it is clear that the fact that the petitioner had been allowed bail in the two F.I.Rs is not disputed. It is also clear that there is no mention in the detention order as to whether the detaining authority was aware at the time of the passing of the detention order that the petitioner had been enlarged on bail in the said cases. In Anant Sakharam Raut v. State of Maharashtra & ors.1, the Supreme Court observed : "National Security Act (65 of 1980), 3.3(2) - Satisfaction of detaining authority - Detention based on certain incidents - Criminal cases pending in respect of these incidents Detenu, an under trial prisoner - Detaining authority, not made aware of the fact that detenu had moved applications for bail and that he was enlarged on bail Detention order silent about these facts Total absence of application of mind on part of detaining authority Detention order was void Division of Bombay High Court, Reversed.";