Gurnam Singh vs State of Punjab

S.K. Bhalla, J.—Petitioner Gurnam Singh was detained pursuant to in order of detention dated 1791987 (annexure P3) issued by the District Magistrate. Amritsar under Section 3(2) of the National Security Act. The said detention order was served upon the petitioner, who was already in Judicial custody, on 22.9.1987 and thus his detention under National Security Act started with effect from 22987. The order of detention dated 17.9.1987 of the District Magistrate, Amritsar, was however, revoked on 2231988 vide revocation order of even date, annexure P 4. Subsequent detention annexure P1 was made on the same date i.e., 22.3.1988. The Detention is based on various incidents detailed in grounds of detention (annexure P2) ranging from 1771987 to 2171987 and petitioner was actually arrested for commission of the crimes which were made basis of detention on 2671987. The earlier detention order was also based on the same grounds admittedly. Through this petition Gurnam Singh has sought quashing of detention order annexure P1 and all other such orders which were passed subsequently inthis behalf.

Section 14A of the National Security Act, 1980, which was introduced through Amendment Act of 1987, permits detention of any person in respect of whom an order of detention has been made under the Act at any time before the 8th of June, 1988, without obtaining the opinion of the Advisory Board for a period not exceeding six months. It necessarily means that Government is under an obligation to complete he entire procedure and confirm detention of a person within 6 months of his detention. Beyond that period, detention becomes bad and gets vitiated. As is clear from clauses (4) and (7) of Article 22, Constitution looks upon preventive detention with disfavor and has permitted the same only for a limited period without the intervention of an independent body with persons on it of judicial qualification of a high order. Lapse of the limited period, therefore, makes the detention illegal. In this case preventive detention of Gurnam Singh having started on 2291987, entire procedural formalities were required to be gone into by 2131988 when the maximum period of 6 months expired. Words used in Section 14A of the National Security Act are "not exceeding six months", meaning thereby that every thing should, be done within that period. The procedural requirements are the only safeguards available to a detenu since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and constitutional rights guaranteed to him in that regard. The order of revocation and all subsequent orders including consultation of the Advisory Board made beyond 2131988, therefore, are of no consequence. In a similar situation, while dealing with a parallel provision of Gujarat Act No. 16 of 1985, in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha and another, AIR 1987 Supreme Court 725 : 1987(2) Recent CR 17, it was observed by the apex Court : "It becomes imperative to read down Section 15 of the Gujarat Prevention of Anti Social Activities Act, 1985, which provides for the making of successive orders of detention so as to bring it in conformity with Article 22(4) of the Constitution. If there is to be a collision between Article 22(4) of the Constitution and Section 15 of the Act, Section 15 has to yield. But by reading down the provision, the collision may be avoided and Section 15 may be sustained. So, avoiding the collision course, we hold that if the report of the Advisory Board is not made within three months of the date of detention, the detention,becomes illegal not withstanding that it is within three months from the date of second order of detention." The Hon''ble Judges of the Supreme Court have further observed in that case." We only desire to add that in a habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and therefore that detention should be upheld." The order of detention in that case was quashed on that sole ground. In Deb Sadhan Roy v. The State of West Bengal, AIR 1972 Supreme Court 1924, it was held that the confirmation of the opinion of the Advisory Board to continue the detention beyond three months must be within three months from the date of detention in conformity with the mandate in Clause (4) of Article 22. Now after the amendment of 1987, said period having been permitted to be longer than three months but not exceeding 6 months, the confirmation was required to be made by the State Government within 6 months from the date of detention and the same having been done beyond six months cannot possibly be sustained.

Even otherwise petitioner being already in custody for the last about 2 months could not have possibly indulged in any such activities so as to justify preventive detention. It is mentioned in the grounds of detention that order of detention to the petitioner was passed with a view to preventing him from indulging in such prejudicial activities in future, but it is neither made clear in the said grounds Annexure P2 or detention order annexure P1 how he was likely to indulge in such activities in the near future when at the time of passing of the detention order he was admittedly in custody. It is stated in bald manner in the impugned order that petitioner was taking steps to get himself released from custody and there was every likelihood of his being released, but the steps taken by him have not been spelt out. Petitioner has stated in the petition that there was no move on his part to be released on bail at the time of the making of the detention order and that assertion of his has not been refuted in reply. There is no material on the record to show that the detenu would repeat misconduct or do anything else which would be prejudicial to the maintenance of public order, and for that reason as well orders of detention are liable to be set aside because power of directing preventive detention is a preventive measure and not punitive one. It was held in Fazal Ghosi v. State of U.P. and others etc. AIR, 1987 Supreme Court 1877 : 1982 (2) Recent CR 321 , "The District Magistrate, it is true, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all". In the absence of any such material, detention orders in respect of all the four detenus were quashed by the highest Court. In Smt. Shashi Aggarwal v. State of U.P. and others, AIR 1988 Supreme Court 596 : 1988 (1) Recent CR 579, as well, it was held that the possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. Rather there must be credible information or cogent reasons apparent on the record that the detenu would act prejudicially to the interest of public order. Relying on the said rulings, in the absence of any such material which might be taken to be sufficient at the time of the passing of the detention order, to indicate the possibility of release of the petitioner from custody who was involved in three different cases in the near future and further to show that he would repeat misconduct or do anything else which could be prejudicial to the maintenance of public order, the orders of detention are liable to be set aside.

For the foregoing reasons, detention order dated 2231998 P1 against the petitioner and all other such orders which might have been passed subsequently in this behalf are quashed. No order for release of the petitioner is however made as there is no statement in the petition that the petitioner is on bail in the criminal cases registered against him.