Harminder Kaur vs State of Punjab

S.D. Bajaj, J.

One Sher Singh Doomchhari was arrested by Chandigarh Police in 107/151 Criminal Procedure Code proceedings on 14th May, 1988 and lodged in Burail Jail at Chandigarh. Detention order based on grounds of detention Annexure PA was served on the detenu inside Barail fail on the 28th May, 1988. In the grounds of detention, the detenu is alleged to have made five provocative speeches inciting communal hatred between Hindus and Sikhs and inciting Sikhs to armed violence against Government established by law both in the State and at the Centre during the period 13th December, 1987 to 31st January, 1988. Harminder Kaur wife of the detenu has filed Criminal Writ Petition No 1024 of 1989 assailing the detention of her husband on the grounds that the detenu being already in jail could not indulge in prejudicial activities thereafter and as such the detention order was passed without any application of mind by the detaining authority, that no case was at all registered against the detenu for prejudicial activities attributed to him in the grounds of detention Annexure P. 2 and that the order of detention was passed by the detaining authority in a cursory routine manner without any application of mind much less its subjective, satisfaction and as such is required to be quashed. In reply it was urged

"The contents of this para are admitted to the extent that the detenu alongwith his other party leaders and workers was arrested on 1451988 by the Chandigarh Police U/s 107/151 Cr. P C. on apprehension of breach of peace. It is also correct that the detenu was detained on 2851988 when he was lodged in Burail Jail in connection with the proceedings u/s. 107/151 Cr.P.C. In reply to the contention of the petitioner that the detenu did not make efforts to get himself released, it is submitted that in security proceedings the release of the person arrested could not be opposed and the release of the detenu in the said case was imminent because he could be released as soon as he furnished the interim security and the Govt could not oppose his release and if released, the detenu was likely to indulge in activities prejudicial to the security of the State and maintenance of public order. Therefore, there was a compelling necessity to pass the detention order against the detenu in view of the imminent likelihood of his being released. The detenu was duly supplied with a copy of the detention order and ground of detention Annexure P. 2. The averment of the petitioner that the detention order was not supplied to the petitioner is untenable because detention order was only to be supplied to the detenu, which was as already submitted duly supplied. The detenu acknowledged the receipt of the detention order, which is annexed as Annexure R1".

I have heard Shri H. S. Mattewal, Sr. Advocate, with Mr. Sukhbir Singh, Advocate, for the petitioner, Shri S. S. Saron, A.A.G. Punjab for the respondept State and have carefully gone through the Annexures brought on record by both the parties.

Accusations against the detenu, obtaining in Annexure P. 1 are that during the period from 13th December, 1987 to 3 Ist January, 1988 he repeatedly made five provocative speeches inciting communal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against Government established by law both in the State and at the Centre and making the offer of help to the terrorists. No case was at all registered against the detenu for making such speeches. In similar situation adjudicating upon the validity of detention order in Fazal Ghosi v. State of U.P. and others, 1987(2) RCR(Crl.) 321 (SC) : AIR 1987 Supreme Court 1877 their Lordships of the Supreme Court observed :

"Learned counsel for the detenus challenges the detention orders on several grounds. In our opinion, it is not necessary to consider all the points raised because it appears to us that the cases can be disposed of on a short ground. The contention on behalf of the detenus is that there was no material before the District Magistrate on the basis of which be could form the opinion that the detenus would act in future in a manner prejudicial to the maintenance of public order. It is pointed oat that the National Security Act provides for preventive detention, and preventive detention is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the statute. There is no doubt that preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed. Section the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a. manner which may prejudice any of the considerations set forth in the section. In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. 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 circumstances, the detention orders in respect of the four detenus must be quashed."

Viewing from the other perspective of not registering case against the detenu in respect of offensive public speeches, repeatedly made by him as aforesaid during the period 13th December, 1987 to 31st January, 1988 or not prosecuting him on that account, their Lordships of the Supreme Court observed in Sadhu Roy v. The State of West Bengal, 1975 Criminal Appeal Reports 134 as follows

"There are two social implications of dropping prosecutions and resorting to substantive detention which deserve to be remembered. Where a grievous crime against the community has been committed, the culprit must be subjected to consign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment than stringent sentences and there is no reason why a dangerous criminal should get away with it by enjoying an unfree but unpaid holiday. Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time. That is negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the cage."

Learned Assistant Advocate General, on the other hand, referred, me to the observations made in Giani Bakhshish Singh v. Government of India and others, AIR 1973 Supreme Court 2667, Smt. Hemlata Kantilal Shah v. State of Maharashtra and another, AIR 1982 Supreme Court 8 and Raj Kumar Singh v. State of Bihar and others, 1987(1) RCR(Crl.) 75 (SC) : AIR 1986 Supreme Court 2173 to urge that the possibility of prosecution is no bar to ordering preventive detention and that the Court cannot substitute its decision or option is place of decision of the authority concerned on the necessity of passing the preventive detention order. The relevant observations read, "possibility of a prosecution or the absence of it is not an absolute bar to an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tenancy to go on violating such laws, then there will be no bar for the State of detain him under a Preventive Detention Act in order to disable him to repeat such offences. The detaining authority is not the sole judge of what national security or public order requires. But neither is the court sole judge of the position. When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasonable, in the sense that no person instructed in law could have reasonably taken that view, then the order is not bad and the Court cannot substitute its decision or opinion in place of the decision of the authority concerned on the necessity of passing the order."

Cases wherein the possibility of prosecution is no bar to ordering preventive detention are set out in case Smt. Hemlata Kantilal Shah v. State of Maharashtra and another aforesaid itself. The relevant observations read, "In some cases of prosecution it may not be possible to bring home the culprit to book as in case of professional bully, a murderer or a dacoit, as witnesses do not, come forward to depose against him out of fear, or in case of international smuggling it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt." In such a situation what is required is that the detaining authority is to satisfy the court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. A reference to the detention order would, however, indicate that this particular aspect of the matter was not adverted to by the detaining authority at all while making the order of detention.

In this particular case, the Court is not at all substituting the decision or opinion of the detaining authority. It is only ascertaining whether the subjective satisfaction of the detaining authority is based on pertinent material or that while making the detention order the detaining authority had in mind the question whether the prosecution of the detenu was possible and sufficient in the circumstances of the case. Reference to the detention order, however, answers it in the negative.

Being conscious of the decision in Criminal Writ Petition No. 249 of 1989 entitled Gurpratap Singh v. State of Punjab and others, 1990(1) RCR(Crl.) 313 (P&H) : decided on 11th April, 1989, learned counsel for the petitioner did not make any grievance of his shifting from Burail Jail to Tihar Jail and thereafter to Central Jail, Thana in Maharashtra.

In line with the Supreme Court observations in Fazal Ghosi v. State of U.P. and others, AIR 1987 Supreme Court 1871 reproduced above, Criminal Writ Petition No. 1024 of 1989 succeeds and is allowed. Detention order passed against the petitioner on the grounds of detention. Annexure P. 1 is quashed and detenu Sher Singh Doomchhari is ordered to be released forthwith if not required in any other case.