Desa Singh vs State of Punjab

Ujagar Singh, J.

JUDGMENT annexure P. 1 was passed by the District Magistrate, Amritsar, for the arrest of the petitioner and his detention in Central Jail, Amritsar, under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (hereinafter called the Act) on 9th December, 1986. Grounds of detention are given in annexure P. 2 and they were served on the petitioner. The detention order was ultimately confirmed on 13th March, 1987 vide annexure P3. Annexure PA is the representation made by the petitioner on 4th January. 1987. Advisory Board had made a report for approving the detention of the petitioner. The detention order in this petition is challenged mainly on two grounds :

(1) that the petitioner was already in Central Jail, Nabha,; and

(2) that father of the petitioner went to Central Jail Nabha to contact the petitioner and he was not allowed to even an interview with him and, therefore, his representation, annexure P. 4 could not be put. forth and he has been deprived of the opportunity.

No doubt, it is mentioned in the detention order that the petitioner was already in custody and it is also mentioned that in the event of his being released he was likely to indulge in activities prejudicial to the maintenance, of public order and security of State in view of his prima facie propensity towards such activities but the District Magistrate did not consider the remote possibility of the petitioner being released on bail because the petitioner had not even put in any application for bail before any Court and if this aspect of the case had been looked into, the detention order was not called for. The detaining authority has to consider the whole matter before passing any such order. The Senior Superintendent of Police, Amritsar, was directed to execute the detention order by arresting him and lodging him in Central Jail, Amritsar, where the grounds of detention in Punjabi along with an English translation thereof and the purporting material were to be supplied to the petitioner against a proper receipt within the stipulated period. Confirmation order, annexure P. 3 was conveyed vide memo., No. 1272HIII (NSA)86/989 dated 13th March, 1987 and it was addressed to the petitioner on his village address.

Learned counsel for the petitioner has cited verdict of the Supreme Court in Ramesh Yadav v. District Magistrate Etah, A.I.R. 1986 S.C. 315, and a later judgment in Binod Singh v. District Magistrate, Dhanbad, Bihar and others (AIR 1986 SC 2090). Following the earlier judgment in Ramesh Yadav''s case (supra) this Court quashed detention in Criminal Writ Petition No. 270 of 1987 (Balwinderjit Singh alias Lakha Singh v. State of Punjab, decided on 9th April, 1987, 1987(1) Recent CR 646. In the later decision, that is, Binod Singh''s case (supra) their Lordships'' of the Supreme Court have again reiterated their earlier view and held that

"There must be awareness of the facts necessitating preventive custody of a person for social defence, a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could have been put into preventive custody."

It was further observed that :

"In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there, was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act was not justified."

The relevant factors relating to the cogent material giving rise to a thinking on the part of detaining authority that there was immediate likelihood of the release of the detenu from the custody to which he had already been subjected must be considered. In this case there did not exist any such material at the time of the passing of the impugned detention order nor such material has been produced before me. Rather material allegations do not indicate that the petitioner had ever moved for his release prior to the passing of the impugned order. There is, of course, reference in the detention order that in the event of his being released from custody he was likely to indulge in activities prejudicial to the maintenance of public order and security of State in view of his prima facie propensity towards such activities but the question is whether there was any imminent possibility of his being released or not. The second argument of the counsel for the petitioner that the father of the petitioner was not allowed to have an interview with the petitioner so as to enable him to send his representation through Superintendent Central Jail, Nabha, need not be gone into.

For the foregoing reasons, the detention order, annexure P. 1, cannot be upheld and is quashed and the petitioner is directed to be released from custody forthwith.