Ajit Singh vs State of Punjab

S.D. Bajaj, J.

Criminal Writ No. 1690 of 1988 has been filed by Ajit Singh detenu for quashing the detention order No. MA/11717 passed by the District Magistrate, Amritsar, against him on December 21, 1987, Annexure P1. The grounds alleged for claiming the desired relief are that the petitioner was already in jail with effect from November 26, 1987, on the basis of F.I.R. No. 37 dated March 10, 1987 registered against him in Police Station Valtoha, district Amritsar, under sections 41, 414 of the Indian Penal Code and Section 25 of the Arms Act when the impugned order of detention was clamped upon him; that the order of detention was passed in a mechanical manner, without any application of mind; much less any subjective satisfaction of the detaining authority; that the petitioner was detained along with one Amrik Singh of Thathi Jaimal district Amritsar on indentical grounds; that the detention order in respect of Amrik Singh aforesaid was reovked vide order No. 4142H III (NSA)88/3570 dated June 16, 1988, but this aspect of the matter was not taken into consideration by the detaing authority while confirming the detention of the petitioner. Hence the impugned order being in every way illegal is required to be quashed.

Respondents 1 and 2 in their replies filed on October 27, 1988, and November 14, 1988, respectively, urged that the impugned order of detention was passed by the detaining authority after due application of mind on its subjective satisfaction and that different action was taken in the two cases of the petitioner and Amrik Singh on the basis of different advice tendered by the Advisory Board.

I have heard Shri Amar Singh Sandhu, Advocate, for the petitioner and Shri S.S. Saron, Assistant AdvocateGeneral, Punjab, for the respondents and have carefully analysed the arguments advanced by both of them.

Para 3 of the detention order Annexure P1 reads that this order has been passed by me being conscious of the fact that Ajit Singh is already in judicial custody in the cases registered against him. Ajit Singh is taking steps to get himself released from the custody and there is every likelihood of his being set at liberty, and in that event he is likely to indulge in prejudicial activities in view of his prima facie propensity towards such activities and thus there is compelling necessity to pass the detention order against him though he is in judicial custody at present.

After reading it, learned counsel for the petitioner on the basis of observations made by Supreme Court in Smt. Shashi Aggarwal v. State of U.P. and others, 1988(1) Recent Criminal Reports 579 : AIR 1988 Supreme Court 596 urged that every citizen in this country has the right to have recourse law. He has the right to move the Court for bail when he is arrested under the ordinary law of land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, by interdicted from moving the Court for bail by clamping an order of detention. The possibility of the Court granting bail may not lie sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough, There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would Act prejudicially to the interest of public order. Where the detention order was passed against the detenu, who was already in jail, merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and there was no material on record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of public order, the order of detention would be illegal.

Learned counsel for the respondents on the other hand referred me to the Supreme Court observations made in Vijay Kumar v. Union of India and others, A.I.R. 1989 Supreme Court 934 : 1988(1) Recent Criminal Reports 602 and urged but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby paradise the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention. I do not think that the contention is sound. There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts therein. The satisfaction of the detaining authority cannot be reached on extraneous matters. While advancing this arguments, learned counsel for the respondent, presumably lost sight of the observations made by the Supreme Court earlier in para 32 of the judgment aforesaid which read "the first question is as to the legality of an order of detention of the person who was already in custody. The Law Report contains several decisions on this point and they furnish an instructive lesson for both sides. In all the cases, there is. however, one uniform principle stated and reiterated. It is this : The detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary." No compelling reason for clamping the order of preventive detention on the petitioner in spite of his being already in custody having been noticed by detaining authority while making the order of detention the basis for its alleged subjective satisfaction obviously falls through and the impugned detention order is rendered illegal on this score.

In identical circumstances in the case of Kulwant Singh v. State of Punjab, 1987 Chandigarh Criminal Cases 547, it was observed by Hon''ble Mr. Justice Pritpal Singh (as his Lordship then was) "No doubt, when the initial detention order was passed against the petitioner on November 28, 1986, the order of revocation of the detention order passed against Sukhdev Singh alias Sukha was not is existence. However, it is not denied that when subsequently the petitioner''s detention was confirmed on April 28, 1987, (Annexure P.2) the detention order against Sukhdev Singh alias Sukh had already been revoked on March 27, 1987. There can be no doubt that initially the petitioner as well as Sukhdev Singh alias Sukha had been detained pursuant to the same activities of smuggling of the gold biscuits. It was, therefore, essential that the order of revocation of detention of Sukhdev Singh alias Sukha ought to have been considered by the Government while confirming the order of detention passed against the petitioner. A similer situation arose in case before Allahabad High Court in Santosh Kumar v. State of U.P. and others, 1986 Crl. L.J. 557. In that case the petitioner Santosh Kumar and one Lalman had been detained under section 3 of the Act and one of the incidents on which their detention was based was common. The detention of Lalman was revoked on the report of the Advisory Board but this fact was not considered by the State Government while confirming the detention order passed against Santosh Kumar. The Allahabad High Court relying upon a Supreme Court judgment in Mohd. Shakeel Wahid Ahmad v. State of Maharashtra, 1983 Crl. L.J. 967, held as under :

"In the instant case, however, when the detention order against Santosh Kumar, the petitioner, was passed, the report of the Advisory Board or the release order in respect of Lalman was not available because that was subsequent affair, but at the time when the detention order in respect of the detention of Santosh Kumar was confirmed by the State Government the Advisory Board''s report and the release order in respect of Lalman were before the State Government and consequently they should have been taken into consideration even at that stage. This view was expressed by a Division Bench of this Court of which one of us was a member in the case of Aruna Shanker v. State of U.P. (W.P. No. 6346 of 1983 (HC) decided on 30.4.1984) reported in 1984. All C.J. 1031. That being so, the detention order insofar as it was based on the incident relating to Lalman, would be vitiated on the aforesaid ground."

The facts of the present case are fully covered by the judgment of the Allahabad High Court in Santosh Kumar v. State of U.P. and others, 1986 Crl. L.J. 557. In the instant case also the order of revocation of the detention of Sukhdev Singh alias Sukha was not considered by the State Government when the order of detention passed against the petitioner was confirmed. Thus, a very crucial material which should have informed the detaining authority the circumstances in which Sukhdev Singh alias Sukha was ordered to be released was not considered when the detention order against the petitioner was confirmed. Whatever might have been the view of the detaining authority after consideration of the revocation of the detention order passed against Sukhdev Singh alias Sukha, the fact must have been brought to the notice of detaining authority. In these circumstances prejudice having been caused to the petitioner, impugned order of detenion passed against him as well as the subsequent confirmatory order are vitiated.

In the present case also the order of recovation of detention of Amrik Singh was admittedly not considerd by State Government, while order of detention passed against the petitioner was confrimed by it. In these cirucmstances prejudice having been caused to the petitioner, the impugned order of detention Annexure P1, is vitiated on this score as well.

In result, the criminal writ petition is allowed and the order of detention of the petitioner, Annexure P1, is quashed.