Gurmej Singh vs State of Punjab and anr.

S.D. Bajaj,J.

Gurmej Singh petitioner was arrested by Amritsar Police on June 4,1988 in connection with First Information Report No. 24 dated February 4, 1988 registered against him at Police Station, Khalra, district Amritsar. While the petitioner was in judicial custody and was lodged in Central Jail, Amritsar, respondent No. 2 District Magistrate, Amritsar, served upon him detention order No. MA 6385 dated June 27, 1988. Detention order is Annexure p. I and the grounds on which it is based are Annexure p.1/A. Vide, Criminal Writ No. 1392 of 1998 the petitioner has moved this Court for quashing the order aforesaid on the grounds that the satisfaction of the detaining authority is only mechanical contradistinguished from genuine or and real and that the representation filed by the petitioner against it was not disposed of by the competent authority within the prescribed period.

It was stated by the respondents in reply that the representation dated July 27, 1988 filed by the petitioner against his detention was rejected by the State on August 23, :1988 and that the order of detention was passed by respondent No. 2 against the petitioner because the petitioner was taking steps to get himself released. from, the custody and that there was likelihood of his indulging in prejudicial activities after release.

I have heard Shri A. S. Sandhu, Advocate, for the petitioner, Shri S.S. Saraon, Assistant, Advocate General, Punjab, for the respondents and have carefully gone through the relevant records.

It has been urged by the learned counsel for the petitioner that after his arrest on June 4, 1988 to the date of the impugned orders viz. June 27, 1988 the petitioner did not apply for his release on bail and as such assertion made by, the detaining authority in its order Annexure P.1 of the petitioner having done so or likelihood of his securing a release through it are all faked and mechanical. Learned counsel for he respondents has not been able to controvert this allegation nor has either of the two respondents referred to any corroborative evidence to substantiate their assertion in this behalf in the order of detention. In Kanchanlal Maneklal Chokshi v. State ofGujrat and others, AIR 1979 Supreme Court 1945, their lordships of the Supreme Court observed :

"The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility or launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied, its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when a ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind, the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu."

Aforesaid assertions in the detaining order are thus proved to have been made mechanically and are not based on subjective satisfaction of the detaining authority.

Representation dated July 27, 1988 of the petitioner was required to be decided within two weeks and having admittedly been turned down by respondent No. 1 on August 23, 1988 there was obviously an explained delay of 12 days in its disposal which is fatal. Similar view was expressed by this Court in Satnam alias Satta and another v. State of Punjab and another, 1988(1) Recent Criminal Reports 509. The relevant portion reads:

"Representations were admittedly made on 2.1.1987 and the same were rejected on 21.1.1987 and the petitioners were informed on 28.1.1987. Nothing has been placed on the record to give any explanation as to what happened during this period. The history of cases with regard to preventive detention shows that unexplainable delay for considering all the representations has always been held to be, fatal. In the case. Harish Pahwa v. State of U.P. and others, 1981(3) SCR 276, the representation of the detenu was received by the State Government on 4.6.1980 and the representation was rejected on 24.9.1980. In between comments were called for from Custom authorities on 6.61980 and the same was received on 13.6.1980. On 17.6.1980 the State Government referred the representation to its Law Department for its opinion which was furnished on 19.6.1980. Rejection of the representation on 24.6.1980 was communicated to the jail authorities two days later. In that case it was held that there was no explanation given by the State Government as to why no action was taken on the representation by the detenu on 4th, 5th and 25th June, 1980 and what consideration was given by the Government from 13.6. 11980 to 16.6.1980 and it was on that ground there was inordinate delay in considering the representation of the detenu and the detention was bad in law. This case has been relied upon in the case Piara Singh v. State of Punjab, 1987(2) Recent Criminal Reports 473 (SC) : 1987 IV SVLR (Cr) I in which their Lordships of the Supreme Court approved the principle and the detention was quashed on similar grounds."

For the reasons given above the writ petition succeeds and is allowed. The petitioner is ordered to be set at liberty forthwith unless required in any other case.