Gurbachan Singh vs State of Punjab and anr.

S.S. Sodhi, J.

The challenge here is to the order of the District Magistrate, Jalandhar, of May 6, 1987 under sub sections (2) and (3) of section 3 of the National Security Act, 1980 and that of the President of India of July 8, 1987, confirming it under Section 12 thereof.

The impugned order of detention was passed and served upon the petitioner when he was already in custody having been arrested on October 3, 1986 for offences under sections 302, 307 read with section 149, 148, 170, 120B and 419 of the Indian Penal Code; section 25 of the Arms Act and sections 3 and 4 of the Terrorists and Disruptive Activities (Prevention) Act, 1985. This prior arrest of the petitioner for these offences is what now constitutes the foundation of the infirmity imputed to the impugned order of detention. Relied upon in this behalf being the judgment of the Supreme Court in Benod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR, 1986 Supreme Court 2090, which was followed in Crl. Writ Petition No. 1100 of 1987 (Satnam Singh v. Punjab State), decided on November 3, 1987. In Benod Singh''s case (supra) it was held that where an order of detention under Section 3(2) of the Act is served upon a detenu who is already in jail in respect of a serious charge like murder and there is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order of detention, the continued detention of the detenu, under the Act, could not be justified.

Turning to the present case, it will be seen that there is no doubt mention in the order of detention, annexure P/1, of the petitioner being involved in a criminal case, but there is no indication there that the possibility of his release from such custody was at all taken into account. All that was said was "the extent and nature of prejudicial activities indulged in by you are such that your detention is essential under the circumstances" This clearly does not fulfil the requirements of the rule in Benod Singh''s case (supra).

The further pertinent aspect of the case here is that on March 19, 1987, the petitioner had applied for bail in the criminal case registered against him and he was ordered to be released on bail by the order passed by the Court on April 21, 1987, that is, before the impugned order of detention had been passed against him and yet, as shown earlier, there is no mention in the order of detention of the detaining authority having even considered the possibility of his release from jail. What is more, to date, no attempt has been made to seek the cancellation of the bail granted to the petitioner.

There is yet another ground which renders the continued detention of the petitioner unsustainable and that is the delay in considering his staturoty representation to the State Government against his detention. The record shows that his representation was made on May 19, 1987 and it was not finally rejected till July 11, 1987. The explanation for this delay, as given in the return filed by the Under Secretary to the Government of Punjab, reads thus :

" the petitioner submitted representation on 19.5.1987, (not on 18.5.1987) as per attestation by the Jail authorities. The Superintendent of the Jail forwarded the representation to the State Government on 19.5.1987 and the same was received on 20.5.1987. The District authorities were asked to furnish the comments on the same day, viz. 20.5.1987. Reminder was issued on 22.5.1987 to expedite the comments. (23/5/87 and 24/5/87 were holidays). The District Magistrate demanded copy of the representation on 25.5.1987, as the same was not received in his office. The letter for requesting to make available the copy of representation was received on 26.5.1987. Copy of the representation was sent on 27.5.1987. The District Magistrate forwarded the comments on 28.5.1987, after collecting the same from concerned quarters and by making necessary enquiries. The comments were received on 1.6.1987 (29/5 to 31/5/1987 were holidays). The representation, in the light of comments and other material on record was minutely examined on different dates, viz. 2/6, 3/6, 4/6, 5/6, (6/6 and 7/6/87 were holidays) 8/6, 9/6 and 10/6/1987 at various levels. The same was rejected on 11.6.1987 on merits."

On the face of it, this explanation does not meet the requirements of law as laid down by the Supreme Court in Harish Pahwa v. State of Uttar Pradesh and others, 1982(1) CLR 65, where it was observed :

"In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representations made by the persons detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th, and 25th of June 1980. It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to 16th June, 1980, when we find that it culminated only in a reference to the law Department nor it is apparent why the law Department had to be consulted at all. Again we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned."

"Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We should emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith."

The examination of the representation, on different dates, particularly from June 2, 1987 to June 10, 1987 and at various levels, has not been explained in any manner. During the hearing, the original record was sent for and examined and a reference to it failed to disclose the purpose or justification for the file moving from one desk to another. It appears that the file was also referred to the Law Department, but it is not clear for what purpose this was done, nor could the counsel appearing for the State explain this.

The case here is also fully covered by the recent judgment of our Court in Avtar Singh v. State of Punjab, 1987 (1) R.C.R. 643 , where an almost similar delay took place and a similar affidavit was filed by the Under Secretary to explain the delay in dealing with the representation of the detenu. As in that case, here too, this delay, by itself, must render the continued detention of the petitioner unsustainable.

The impugned order of detention and that confirming it are accordingly hereby quashed.

This petition is thus accepted.