Gurmej Singh vs State of Punjab and anr.

A.P. Chowdhri, J

An order of detention, Annexure P1, dated March 18, 1988, under Section 3(2) read with section 3 and 14A of the National Security Act, 1980, passed by the District Magistrate, Amritsar, was served on the petitioner who was already in judicial custody in connection with a criminal case registered against him. Along with the detention order, detailed grounds, Annexure P2, were also served on the detenu. In the grounds, it was mentioned that the petitioner was an active member of Bhindranwale Tiger Force and for the establishment of Khalistan he believed in the migration of Hindu from Punjab and the petitioner''s activities were thus prejudicial to the security of the State and maintenance of public order. In particular, it was stated that on August 18, 1987 at about 11 p.m., the petitioner alongwith two other persons named therein, went armed to the Behak of one Amar Singh in the area of village Ghariala, Police Station Valtoha, confined said Amar Singh, his wife, and his sister in a room of the cattle shed and forcibly took away his licensed 12 bore SBBL gun. The petitioner also threatened Amar Singh and other members of his family not to report the matter to the police on pain of dire consequences. A case FIR No. 96 dated August 21, 1987, under Sections 382/148/149, Indian Penal Code and 25 of the Arms Act and sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, was registered against them in P.S. Valtoha. Later on, an offence under section 392 Indian Penal Code, was also added. During investigation of the case, the aforesaid licensed gun was, recovered from the petitioner on August 3, 1087.

It was also stated that on August 31, 1987, SHO, PS Valtoha, was holding a nakabandi at a bridge of a canal distributary in the area of village Valtoha. At about 11 p.m. the petitioner armed with 12 bore SBBL gun along with one another person who was also similarly armed, were seen coming along with the canal bank. The petitioner and his companion were signalled to stop with a torch light by the police party, upon which the petitioner and his companion opened fire on the police party. The fire was returned and in the occurrence the petitioner his and companion were arrested at the spot and the aforesaid SBBL gun, which was the licensed gun of Amar Singh mentioned in the earlier incident, was recovered. In this connection a case FIR No. 101 dated August 31, 1987 under Section 307/34, Indian Penal Code, and Section 34 of the T.D.A.P. Act was registered at P.S. Valtoha, which was under investigation at the time of the aforesaid detention order. Both the petitioner as well as his companion on being interrogated by the police during investigation confessed to their complicity in the two occurrences mentioned above.

The detention has been challenged on various grounds.

Return has been filed by way of affidavit of Shri S.K. Bhalla, Under Secretary to Government, Punjab, Department of Home Affairs. It was stated that the order of detention had been passed with due application of mind and that there was no avoidable delay at any stage. Detailed explanation in this behalf was offered.

The first contention of the learned counsel for the petitioner is that there was unexplained delay in the disposal of the representation made by the petitioner. Necessary facts are not mentioned in ground No.(iv) of the writ petition but the relevant dates can be gathered from the corresponding paragraph of the return. An undated representation was received in the office of the respondent on April 18, 1988. It was sent to the district authorities on April 20, 1988, for parawise comments. After making necessary enquiries and verification, the district authorities sent parawise comments on April 22, 1988. They were received in the office of the Under Secretary on April 25, 1988. The case was processed in the Secretariat on April 25 to 27 and 29, and May 2 and 3, 1988. The dates in between were holidays. The case was then submitted to the compentent authority on May 4, 1988 and after due consideration it was rejected by the said authority and communication in this behalf was issued by the State Government the same day i.e. May 4, 1988. There was thus no undue delay.

Learned counsel for the petitioner relied on Harish Pahwa v. State of Uttar Pardesh, 1982 CLR 65, in which A.D. Koshal, J. (as his Lordship then was), speaking for a Division Bench of the Supreme Court, observed that where there was no explanation forthcoming for each day''s delay in considering the representation, the order of detention was rendered unconstitutional. The learned counsel has also relied on Dilbagh Singh v. State of Punjab, 1989(1) RCR 288 , in which detention was quashed by a learned Single Judge of this Court by rejecting the explanation that the case relating to the disposal of the representation of the detenu was dealt with at various levels, as unsatisfactory. Lastly, reference has been made to Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, 1989(1) Recent Criminal Reports 486; AIR 1989 SC 1403. The delay which resulted in the Supreme Court setting aside the order of detention comprised the Superintendent of Jail Singh setting on the representation made by the detenu for about 7 days, which ultimately resulted in a delay of 11 days in the disposal of the representation by the Central Government. No explanation was offered by the Superintendent of the Jail. It was held that the above unexplained delay infringed the constitutional mandate of Article 22(5) of the Constitution. Their Lordships took care to lay down that it was neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of the detenu had to be disposed of. The same would necessarily depend upon the facts and circumstances of each case. What could not be disputed, however, was that a representation should be considered with reasonable expedition and it was imperative on the part of every authority whether concerned with transmitting or dealing with the representation to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay. The question which arises is whether there has been such an unexplained delay as to render the order of detention unconstitutional.

In a recent decision in Madan Lal Anand v. Union of India and others, 1990(2) RCR(Crl.) 58 (SC) : AIR 1990 SC 176 , it has been explained by their Lordships of the Supreme Court that explanation for each and every day''s delay has been mentioned in some of the authorities in order to emphasise that there was need for disposing of the representation with reasonable despatch. Ultimately the matter had to be considered on the facts and circumstances of each cast including the explanation offered for the delay. This is what their Lordships observed in this judgment:

"... In Mst L.M.S. Ummu Saleema v. B.B. Gujaral, (1981) 3 SCC 317 : (AIR 1981 SC 1191), it has been observed that the time imperative can never be absolute or obsessive, and that the occasional observations made by this Court that each day''s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula. the slightest breach of which must result in the release of detenu........."

The conditions prevailing in the troubled State of Punjab are too well known to be dilated upon. It will be totally unrealistic not to give reasonable time to the head of the District police as well as the District Magistrate, in making their comments, which undoubtedly have to be made with a sense of responsibility. Viewed in this light, I find the explanation given in the written statement to be acceptable. I, therefore, do not find any merit in the above contention.

The next ground of challenge urged by the learned counsel is that the petitioner was in custody in connection with two cases and if he approached any Court for being released on bail, it was the duty of the State to oppose such an application, and in case he was allowed bail to approach the higher Court for cancellation of the same. He, therefore, contended that in the facts and circumstances of the case clamping an order of detention on the petitioner was without compelling reasons. Learned counsel placed his reliance on Shri Dharmandra Suganchand Chelawat v. Shri Suganchand Kanbaniyyalal Chelawat, 1990(1) SVLR (Cr) 112. Therein, their Lordships of the Supreme Court reviewed the case law on the subject and concluded that an order for preventive detention can be validly passed against a person in custody and for the purpose, it was necessary that the grounds of detention must show : (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu was already in detention. Their Lordships further observed as under :

"The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

The question arose whether cogent material referred to above is any material outside and in addition to the grounds of detention and supporting material already furnished to the detenu or the same is to be looked for in the grounds ofdetention and the supporting material. There can be hardly any doubt that the cogent reasons or cogent material has to be found in the grounds of detention and the supporting material and not outside thereof. In the nature of things. when the detaining authority decides to pass an order of detention against a person about whom the detaining authority is aware that he is already in detention in connection with a criminal case, the only inference is that the detaining authority is subjectively satisfied that in spite of the accused being in custody in connection with the case, it is necessary that he should be placed under detention. The matter can be viewed from another angle, The detaining authority is required to furnish to the detenu the material which has been taken into consideration for reaching the satisfaction resulting in the order of detention being passed. Reasons compelling the detaining authority to pass the order of detention in spite of awareness that the detenu was already in custody must, therefore, form a part of the material to be furnished to the detenu. If this is not done, the detention is liable to be quashed on this short ground. It follows that the material has to be found in the grounds of detention or the supporting material already furnished to the detenu, and not outside it. I am supported in taking this view by the observations in an unreported decision of the Supreme Court in State of Punjab v. Surjit Singh and another (Criminal Appeal Nos. 541546 of 1989) decided on August 16, 1989. The detentions in a number of writ petitions were quashed by this Court mainly on the ground that while detaining authority had mentioned in the grounds of detention its awareness of the fact that the detenu was already in custody in connection with a criminal case against him further requirement of compelling reasons why the order of detention was nevertheless necessary were not indicated in the order of detention. In coming to the above conclusion this Court relied upon Ramesh Yadav v. District Magistrate, AIR 1969 Supreme Court 315 and Binod Singh v. District Magistrate, 1986(4) SCC 416. The State of Punjab filed special Leave Petitions in the Supreme Court. The Special Leave Petitions were allowed and their Lordships of the Supreme Court observed that the decisions in Ramesh Yadav''s case (supra) and Binod Singh''s case (supra) had been explained in subsequent cases, namely, Poonam Lata v. M.L. Wadhawan, 197(4) SCC 48 and Vijay Kumar v. Union of India and another, 1988(1) Recent Criminal Reports 602; 1988(2) SCC 57 . In Poonam Lata''s case (supra) it was explained, "the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary." (emphasis) In Vijay Kumar''s case (supra), it was observed, "there must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu." After quoting from the above decisions, it was held, "the compelling reason for preventive detention has to be gathered from the grounds of detention and not by anything else."

The observations extracted above also make it clear that it is not always possible for the detaining authority to watch every step of the undertrial prisoner for securing a bail order, I, therefore, do not find any merit in this contention.

Lastly, it was argued that the grounds of detention served on the petitioner is a verbatim copy of the grounds furnished by the SSP. The contention is that the adoption of the grounds furnished by the SSP word for word showed lack of application of mind. I find no substance in this contention. The stand of the learned counsel for the State is that draft grounds were prepared by the SSP and since the District Magistrate found himself in agreement with the SSP, there was hardly any point in paraphrasing the material. The District Magistrate having accepted the draft as such adopted the same as his own. This is the usual way how the noting is done from lowest to the highest level in executive functioning.

I therefore, do not find any merit in the petition, which is dismissed.