Amar Singh Chahal vs Union Territory, Chandigarh and ors.

J.M. Tandan, J.

Amar Singh Chahal petitioner has been detained under section 3(3) of the National Security Act, 1980, (hereafter the Act) by District Magistrate, Chandigarh, vide order dated April 23, 1984, (P.1). He has been supplied the grounds of his detention dated May 1, 1984, (P.3). The petitioner has assailed his detention in the present habeas corpus petition.

The detention order P 1 reads :

"Whereas I, Raghbir Singh, the District Magistrate, Chandigarh I am satisfied with respect to the person known as Shri Amar Singh Chahal s/o Shri Sohan Singh, ordinarily residing at House No. 445 Sector 37A, Chandigarh, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public. order, it is necessary so to do;

Now, therefore. in exercise of the powers conferred under subsection (3) of section 3 of the National Security Act. 1980, Raghbir Singh, District Magistrate, Chandigarh. hereby direct that the abovesaid Shri Amar Singh Chahal be detained."

The relevant part of the grounds of detention P.3 reads :

"1. That on September 18, 1983, at about 10 A.M. at Gurdwara Singh Sabha, Sector 7 you, Amar Singh Chahal s/o Shri Sohan Singh R/O House No. 445, Sector 37A, Chandigarh. addressed a gathering of Sikh community consisting of about 100/125 in which incited the Sikh Sangat that every body should extent full support to A.I.S.S.F. for participation in the Conference scheduled to be held on 2091983 at Amritsar you vehemently exhorted the audience that Sant Jarnail Singh Bhindrawale has awakened the Sikhs from their slumber and it is the time to get realise his golden dream for the establishment of Sovereign Sikh State on the soil of India parallel to the Central Government. You warned that in case the Sikhs slipped from this mission now then in the future, time to come. their coming generations would continue to be trodden under the feet of Hindu Samraj. You further exhorted that it is the duty. of every Sikh to extend all possible help to the members of the A.I.S.S.F. who are the favorite sons of Sant Jarnail Singh Bhindrawala and in this context. everybody should secure legally or illegally weapons/fire arms etc. and jump into the battle field so that the Hindu Government may be brought to task.

That you on April 19, 1984 at Chandigarh, organised a procession consisting of about 150/200 persons including leaders of Central Coordination Committee of local Gurdwaras and Sikh Institutions, Chandigarh and. A.I.S.S.F. activists, in retaliation of the funeral procession of late Shri Inder Pal Gupta, Chairman of the said Samiti, Chandigarh, taken out by Hindu Suraksha Samiti, Chandigarh, on 1841984, who had been assassinated by extremists on 1741984 at Chandigarh. The said procession was led under your leadership. In that procession, the participants were on a bus and large number of scooters/motorcycles carrying naked swords, iron, rods, other lethal weapons and also some fire arms whereas you were is your own car No. CHB1098 leading the procession. In the said procession you remained in an agitated mood and incited the processionists who indulged in disorderly manner and vandalism. The procession passed through the markets and side lanes of Sector 15, P.G.I. Chowk road leading to Command Hospital, Engineering College, Sector 11 Gurdwara, Market Sector 10 and then to Sector 9 market. In the procession at your instigation, the following types of provocative slogans were raised by the processionists :

(1) Bole So Nihal Sat Sri Akal.

(2) Sant Jarnail Singh Bhindrawale Zindabad. (3) Raj Karega Khalsa.

(4) Deg Teg Fateh.

(5) Arre So Jharre.

(6) lkki Dukki Chak Deyange Lor Payee Tan Dhak Deyange.

(7) Dhoti Topi Yamuna Par etc.

When the procession reached in the market in Sector 9 at about 4.30 P. M you gave maximum incitement to the processionists and they became very disorderly. As a result thereof led by you fired on Hindu youth standing in front of Purnima Departmental Store, Sector 9, who was later on identified as Shri Shobh Nath Attendant of the Central Club, Chandigarh, Sector 9, resulting in his death. Even after this incident, the procession continued to be actively organised and controlled by you through Sectors 8, 7, 19, 20, 21 and reached Sector 22 Bajwara Market where again one the processionists fired a shot which resulted in inflicting grievous injuries to another Hindu gentleman who was identified as Amar Nath Jaggi s/o Shri Arjan Dass R/O House No 3107, Sector 38D, Chandigarh. Accordingly cases hearing F.I.R Nos. 323 dated 1941984 u/s 302/147/148/149/188 I.P.C. and 25/27/54/54 Arms Act in Police Station Central, Chandigarh and F.I.R. No. 175 dated 19484 u/s 307/147/148/149/188 I.P.C. and 25/27/54/59 Aims Act were registered in Police Station South, Chandigarh. The procession throughout was actively led and incited by you which indulged in vandalism on the way getting shop closed forcibly, assaulting and intimidating the shopkeepers and vendors and public present there and extreme panic was enthused in the area of Union Territory. You were arrested by the police on account of your involvement in the aforesaid cases. Your vehicle was also taken into possession by the police. Your aforesaid prejudicial activities led to the surcharging of great tension in the Union Territory and the public was greatly terrorised and the authority was compelled to impose curfew on 1941984 in the Union Territory.

The learned counsel for the petitioner has argued that in pursuance of the cases registered and detailed in ground No (2) reproduced above, the petitioner has been arrested on April 19, 1984. The petitioner was under arrest on April 23, 1984, when the order P. 1 was passed. The activities of the petitioner, while under arrest, could not be prejudicial to the maintenance of public order. The order P. 1 or any other material placed on the file does not reflect that the detaining authority was aware of the arrest of the petitioner when the impugned detention order was passed. The omission on the part of the detaining authority in this respect is indicative of nonapplication of mind before passing the impugned order. The detention order P. 1 is liable to be quashed on this ground. The contention is without merit

The District Magistrate, Chandigarh, has made the following averment in his affidavit placed on the file :

"It is true that the petitioner was arrested on April 19, 1984, in two cases, (i) F.I.R. 175/84, dated 1941984, under sections 307/147/148/149/188, I.P.C. and 25/27/54/59 Arms Act, Police Station South, Chandigarh; and (ii) F.I.R. No 323/84, dated 1941984 under sections 302/147/148/149/188 I.P.C. and 25/27/54/59 Arms Act. Police. Station Central. Chandigarh, and he was in judicial custody on April 23, 1994. However, a bail application had been moved on behalf of the petitioner and there was a genuine apprehension in the mind of the deponent that the petitioner may be released on bail. And if released on bail the petitioner was likely to indulge in the same kind of activity as is mentioned in the ground of detention and it was therefore, necessary to pass the order of detention against the petitioner in order to prevent him from acting in a manner prejudicial to be maintenance of public order."

The averment of the District Magistrate reproduced above proves that he was aware on April 23, 1984, when the impugned detention order P. 1 was passed that the petitioner was under arrest as a result of the cases registered with the police since April 19, 1984. The petitioner was released on bail on April 25, 1984, in the cases registered with the police. Under these circumstances it is difficult to hold that the detaining authority was not aware about the arrest of the petitioner when the impugned detention order was passed on April 23, 1984.

The learned counsel for the petitioner has argued that the police submitted the report (P.4/A) on September 18, 1983 about the speech alleged to have been made by the petitioner in Gurdwara Sector 7 on that date. It was necessary that the detaining authority must have valid reason to believe the report to be true and the subjective satisfaction on the part of the detaining authority should have been exhibited in some form. The subjective satisfaction of the detaining authority in this regard is missing and as such ground No. 1 could not be made a valid basis for the detention of the petitioner. The contention is without merit. The detaining authority had every reason to believe the report (P. 4/A) submitted by the police regarding the speech of the petitioner in Gurdwara 7 on September 18, 1983 to be true. The fact that the detaining authority ordered the detention of the petitioner on that ground is sufficient exhibition of his subjective satisfaction.

Another contention of the learned counsel for the petitioner is that the speech alleged to have been made on September 18, 1983, may be emotional. but it cannot be interpreted to preach violence nor any such violence occurred in pursuance thereof. This contention is also without force. The speech reported to have been made by the petitioner on September 18, 1983, is not only emotional but it is also downright incitement to violence. It is immaterial if any violence occurs as a direct result of that speech immediately or not.

The learned counsel for the petitioner has argued that the petitioner has been detained by the District Magistrate, Chandigarh under section 3 (3) of the Act and the power of detention could he exercised under section 3(2) and not under section 3(3). It also shows nonapplication on the part of the detaining authority and for that reason the impugned order is liable to be bet aside. This contention is neither here nor there. The power of detention could be exercised by the District Magistrate under section 3(3) and not under section 3(2). The petitioner, therefore, cannot Make a grievance that he has been wrongly detained by the District Magistrate under section 3(3) and not under sections 3(2) of the Act.

Inderpal Gupta, Chairman of the Hindu Suraksha Samiti, Chandigarh, was shot dead on April 17, 1984. His dead body was taken out to the hospital in procession on April 18, 1984. Some members of the procession indulged in violence Another procession under the leadership of the petitioner was taken out in retaliation on April 19, 1984, in spite of the fact that a ban under section 144, Criminal Procedure Code, had been imposed. During the course of this procession one person was shot dead and another injured.

The learned counsel for the petitioner has argued that it is a fact that the petitioner had the procession on April 19, 1984, in contravention of the prohibitory order under section 144, Criminal Procedure Code. The petitioner could not make a grievance if be had been detained under the Act on that ground alone. But as is evident from the grounds of detention, the petitioner has not been detained on the sole ground that he had led a procession on April 19, 1984. He has been detained also on the ground that during the course of procession one person was shot dead and another was injured. There is no material to indicate that the petitioner had indulged in incitement when a person was shot dead in Sector 9 and also when another was injured in Sector 22. The petitioner, therefore, cannot be validly detained on account of his having led the procession on April 19, 1984. I am not impressed by this contention. The petitioner admittedly led the procession in contravention of the prohibitory order under section 144, Criminal Procedure Code on April 19, 1984. He raised slogans as detailed in ground No. 2, some of which tend to incite and are objectionable. When the petitioner was leading the procession a person was shot dead in Sector 9 and another injured in Sector 22. The details of the activities of the petitioner on April 19, 1984, are given in the grounds of detention supplied to him. The copies of the F.I.Rs. as also the report of the Police (P. 5) regarding the taking out of the procession on April 19, 1984. have been supplied to the petitioner. The petitioner could, therefore. be validly detained under the Act in pursuance of ground No. 2 of the grounds of detention P 3.

The Government has power to regulate the place and conditions of detention of the detenus under section 5 thereof. The Chandigarh Administration has formulated the Chandigarh Detenus (Conditions of Detention under the National Security Ordinance) JUDGMENT 1980, in exercise of the power under section 5 or the Act. Clause 13 of this JUDGMENT deals with interviews.

The relevant part of clause 13 reads :

"13. Interviews Interview with detenus shall be allowed only with prior permission of the Chandigarh Administration. An application for interview shall be made in Form `A'' appended to this order. Every detenu, irrespective of the class, may be permitted to interview members of his family consisting of wife, children and his parents once in a month. Such interviews shall not last more than one hour and shall be in the presence and within the bearing of an officer to he nominated by the Home Secretary, Chandigarh Administration, Chandigarh.

(2) Over and above the interviews specified in subclause (1) every detenu will be entitled to interview an advocate of his choice. subject to the condition that the interview will be purely for purposes of detenu''s representation under the Act or any application, the detenu may wish to make to a Court of law or in connection with advice relating to matters which may be pending in a Court of Law to which a detenu is a party. Such an interview will be strictly limited to one occasion of duration not more than two hours for each specific purpose. Even this interview will be in the presence and within the hearing of the Officer nominated under subclause (1).

(3)

(4) Interviews shall ordinarily take place on Thursday, but in special circumstances where the enforcement of this rule would entail harshness the Superintendent is authorised to allow an interview to take place on any other day of the week. All cases in which the Superintendent exercises his authority under this rule to allow an interview on a day other than Thursday shall be reported by him forthwith to the Chandigarh Administration. Intimation of the date and time fixed for all interviews shall be given by the Superintendent not less than twelve flours in advance in order that arrangements may be made for the attendance of the officer referred to in subClause (1).

In Francis Corlie Mullin v The Administrator, Union Territory of Delhi and others, 1981 S.C. 746, their Lordships examined the vires of clause 3(b)(i) and (ii) of the Conditions of Detention prescribed by Delhi Administration vide order dated August 23, 1975, issued under section 5 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which read :

"3. The conditions of detention in respect of classification and interviews shall be as under :

(a)

(b) Interviews : Subject to the direction issued by the Administrator from time to time permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi, as under :

(i) Interview with legal adviser :

Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention;

(ii) Interview with family members

A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu. Their Lordships struck down subclause (ii) of clause 3 (b) with the following observations :

"We would therefore, unhesitatingly hold subclause (ii) of Clause 3(b) to be violative of Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have at least two interviews in a week with relatives and friends and'' it should be possible for a relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable".

Their Lordships further struck down the provisions of subclause (i) of Clause 3(b) as violative of Articles 14 and 21 with the following observations :

"The same reasoning must also result in invalidation of subclause (i) of Clause 3(b) of the Conditions of Detention JUDGMENT which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central Excise Enforcement to be nominated by the local Collector of Customs/Central Excises or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceedings but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding civil or criminal, is obviously included in the right to live with human dignity and is also of this part of personal liberty and the detenu cannot be deprived right nor can this right of the detenu be interfered with except in accordance with reasonable fair and just procedure established by a valid law.

We are, therefore, of the view that subclause (i) of Clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement, but if the presence ''of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured. then any other Jail official may, if thought necessary, watch the interview, but not so as to be within hearing distance of the detenu and the legal adviser.."

In Sukhpal Singh and another v. State of Punjab and others, 1984 Crl. L.J. 428 : 1984 (2) Recent Criminal Reports 451 this court examined Rule 13 of the Haryana Detenus (Conditions as to Maintenance, Discipline, and Punishment for Breaches of Discipline) JUDGMENT 1980, which deals with interviews. The relevant part of this Rule reads

"13. Interviews :

(i) Every detenu shall be granted interview with a lawyer of his choice with the prior approval in writing of the State Government or the District Magistrate of the District Magistrate of the district where in the detenu is detained or the Superintendent and when detained under the orders of the Central Government, that Government, subject to the following conditions namely;

(ii) the interview will not be allowed more than once a week;

(iii) the interview will be confined to matters relating the detenu''s detention or such other judicial matters pertaining to the detention as may be pending in Court;

(iv) the interview will not last more than two hours on any one occasion;

(v) the interview will be held in the presence and within the bearing of an officer deputed by the State Government or District Magistrate of the district or the Superintendent or the Central Government, as the case may be.

(2) On an application of a detenu, the District Magistrate of the district wherein the detenu is detained or the Superintendent may grant special interview with not more than one person at a time to be specified by him in connection with the following matters, namely :

(i) filing of returns of incometax, sales tax or the like;

(ii) business or professional matters if the District Magistrate or the Superintendent is satisfied that such matter cannot be looked after by any other than the detenu:

Provided that such interview will be held in the presence and within the hearing of an officer deputed by the District Magistrate or the Superintendent.

"(3) A detenu may be allowed interview with members of his family and near relative not exceeding two in number once a fortnight only by the District Magistrate of the district wherein the detenu is detained or the Superintendent. Subject to the condition that the interview will be held in the presence and within the hearing of an officer, deputed by the District Magistrate or the Superintendent, as the case may be".

The following observations have been made in Sukhpal Singh''s case (supra) about the reasonableness of Clause (1) and its subclause (iv) and Clause (3) of Rule 13 of the Haryana Rules :

"Clause (1) of Rule 13, to the extent it envisages grant of interview with a lawyer of choice with the prior approval in writing of the State Government or the District Magistrate of district is unreasonable. So also its sub clause (iv) to the extent in envisages holding of the interview within the bearing of an officer deputed by State Government or the District Magistrate of the district or the Superintendent of the Jail or the Central Government. Subrule (3) to the extent it restricts interview with members of the family and near relatives of the detenu not exceeding two in number once a fortnight only with the permission of the District Magistrate of the district also suffers from the Vice of unreasonableness. The aforesaid provisions are, therefore, liable to be struck down to the extent indicated above as being ultra vires the provisions of Article 21. In my view, the Haryana Government should follow the norms regarding the grant of interview with a lawyer. as prescribed by their Lordships in Francis Coralie Mullin''s (1981 Crl.L.J. 306 (SC) (supra) till such time, the said norms are included in the rules in accordance with law.

In regard to the interview with the members of the family and friends and relatives, in my opinion, it would be normal that five persons at a time, whether relatives or friends, be permitted to see the detenu. If they happen to be more than 5 in number then they should also be permitted to have interview with the detenu the same day by distributing the available time of the interview. However, not more than 10 persons on the given day would have a right to see the detenu. Since a friend, cannot be defined, so it would be desirable, to avoid inconvenience, that the detenu furnishes a list of'' his friends from time to time to the Superintendent "of the Jail and such persons, whose name appear on the list as friends, be permitted to see the detenu."

The case under consideration is covered by the ratio of Sukhpal Singh''s case (supra) The following principles emerge in the light of the observations made therein:

A detenu is entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of Jail which appointment should be given without any avoidable delay. The interview need not necessarily take place in the presence of an officer to be nominated by the Home Secretary, Chandigarh Administration, Chandigarh. But if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement thereof then such officer and if his presence cannot he secured then any other Jail official may, if thought necessary, watch the interview, but not so as to be within hearing distance of the detenu and the legal adviser. The duration of the interview should not exceed two hours.

The detenu should be permitted to have at least two interviews in a week with relatives and friends subjects to the maximum of 10 in number a day any reasonable hour on obtaining permission from the Superintendent of the Jail. The relatives and friends can he allowed to interview in batches of 5 each on the sarne day by distributing the available time of the interview. To avoid inconvenience, the detenu may furnish a list of his friends and relatives from time to time to the Superintendent of the Jail and such persons whose names appear on the list as friends may be permitted to see him. Such interviews shall be held in the presence and within the hearing of an officer to be nominated by the Home Secretary. Chandigarh Administration, Chandigarh. The total period of interview with the detenu in a day shall not exceed one hour.

The learned counsel for the respondents has argued that in Francis Corlie Mullin''s case (supra) a smuggler was involved and the detenu had been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The ratio of this authority cannot be made applicable to the instant case where the detention under the Act has been ordered to curb the mass movement, the avowed object of which is to disturb public order by terrorism and to create a sovereign State by sabotaging and paralysing the existing system. In order to defeat the undesirable movement it is necessary to isolate the detenu detained under the Act from the Orgnisation. It is in this background that the impugned rules regarding interview of the detenu detained under the Act have been framed. The standard of human dignity laid in Francis Corlie Mullin''s case (supra) should not be maintained in the case of the detenus detained under the Act who are out to destroy the right of the other members of the society to live with such dignity.'' This aspect of the case has not been considered in Sukhpal Singh''s case (supra) and for this reason the matter may be referred to a larger Bench for reconsideration of the rule laid therein. I am not impressed by this contention. The rule of human dignity laid by their Lordships in Francis Corlie Mullin''s case (supra) has rightly been made applicable in Sukhpal Singh''s case (supra) in the case of detenus detained under the Act. The organised smuggling activities are as, dangerous to the society as the activities. the avowed object of which is to disturb public order by terrorism. If a smuggler detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is entitled to a life of dignity during detention, there is no reason why similar human dignity should net be extended to a detenu under the Act. It is, therefore, difficult to hold that the view expressed in Sukhpal Singh''s case (supra) needs reconsideration by a larger Bench.

In view of discussion above, the detention of the petitioner in pursuance of the impugned order P.1 under the Act is maintained. The subclauses (1) (2) of Rule 13, of the Chandigarh Detenus (Conditions of Detention under the National Security Ordinance) JUDGMENT 1980, are struck down to the extent indicated, above being unreasonable and violative of Article 21 of the Constitution of India. The facility of interviews may be extended to the petitioner, during the period of his to detention in the light of the principles detailed above till such time the said norms are. included in the rules in accordance with law.