Jagjit Singh vs State of Punjab and ors.

J.M. Tandon, J.

Jagjit Singh petitioner has been detained under section 3(2) of the National Security Act, 1980 (hereafter the Act) by the District Magistrate, Gurdaspur vide order dated June 29, 1983 (P.I.). The petitioner has been supplied the grounds of detention (P.2). It has been stated therein that on May 31, 1983, at 11 P.M. the petitioner along with his associate Sarwan Singh (Petitioner in Cr.W.P. No. 423 of 1983) was found under suspicious circumstances by the police near Adda Gahlari. They were stopped on which the petitioner and his associate raised slogans "KHALISTAN ZINDABAD, DAL KHALSA ZINDABAD, PUNJAB SARKAR MURADABAD, KHALISTAN LE KAR RAHEYAN GE, KAR RAHE AN GE HINDU SAMRAJ MURADABAD". The petitioner and his associate were arrested. On search Posters containing objectionable material detailed in P.2 were recovered from them. A case under sections 124A, 153A, Indian Penal Code and 13 of Unlawful Activities (Prevention) Act was registered against them. It is further stated in the grounds of detention that the District Magistrate ordered the detention of the petitioner to prevent him from activities prejudicial to the security of the State and maintenance of public order. The petitioner who was in judicial custody in connection with the case registered against him under section 124A, 153A, Indian Penal Code and section 13 of the Unlawful Activities (Prevention) Act, was served with the detention order P.1 and was also supplied the grounds of his detention P.2. The petitioner has assailed the order P.1 in the present Criminal Writ.

The contention of the learned counsel for the petitioner is that the petitioner had been arrested under section 124A, 153A, Indian Penal Code and section 13 of Unlawful Activities (Prevention) Act during the night intervening May 31, and June 1, 1983. The petitioner was in judicial custody on June 29, 1983, when the impugned detention order was served on him. In view of the fact that the petitioner was in judicial custody he could not act prejudicially to the security of the State and maintenance of public order. In any case, the District Magistrate while passing the impugned order did not take into consideration the fact that the petitioner was in judicial custody and he could not act prejudicial to the security of State and maintenance of public order. The District Magistrate, therefore, passed the impugned order without proper application of mind. It is liable to be set aside on this ground. Reliance has been placed on Vijay Kumar v. State of J & K and others, AIR 1982 SC 1023. The contention of the learned counsel for the petitioner must prevail.

It has been held in Vijay Kumar''s case (supra) :

"Preventive detention is resorted to, thwart future action. If the detenu is already in jail charged with a serious offence, he is in thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There was nothing in the order in question to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order was required to be made. This clearly exhibits nonapplication of mind and would result in invalidation of the order."

It is evident that the District Magistrate did not take into consideration the fact that the petitioner was in judicial custody when the impugned order was passed. There is no mention in the impugned order about the petitioner being in judicial custody. There is also no indication therein that the District Magistrate was aware that the petitioner was in judicial custody.

The learned Assistant Advocate General has contended that in the written statement filed by District Magistrate the reasons justifying the detention has been given. The reason given in the written statement can be taken into consideration for determining whether the detention of the petitioner is justified or not. Reliance has been placed on Merugu Satyanarayana v. State of Andhra Pradesh and others, AIR 1982 SC 1543.

It has been held in Merugu Satyanarayana''s case (supra) :

"Where a preventive order may have to be made against a person already confined to jail or detained, it must be present to the mind of the detaining authority that keeping in view the fact that the fact that the person is already detained a preventive detention order is sill necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. Further, this awareness must find its place either in the detention order or in affidavit justifying the detention order when challenged. The absence of this awareness would permit an inference that the detaining authority was not even aware of the vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was nonapplication of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty, if, mechanically passed without application of mind, is obviously, liable to be set aside as invalid."

The ratio of Merugu Satyanarayana''s case (supra) is hardly applicable to the instant case. The detention order was passed by Mr. Gurdev Singh, District Magistrate on June 29, 1983. The written statement has been filed by another District Magistrate who probably succeeded Mr. Gurdev Singh. In this written statement it has been averred that the petitioner was in judicial custody, but he could be granted bail at any time and further more registration of a case under sections 124A, 153A, and section 13 of the Unlawful Activities (Prevention) Act is not sufficient to prevent him from acting in the manner prejudicial to the State and maintenance of public order. The District Magistrate who has filed the written statement is not the one who had issued the impugned order on June 29, 1983. The answering District Magistrate could not possibly know what was in the mind of Mr. Gurdev Singh, District Magistrate, when he passed the impugned order on June 29, 1983. The written statement filed by the successor District Magistrate is neither suggestive nor can it be that Mr. Gurdev Singh, District Magistrate had taken into account the fact that the petitioner was in judicial custody when the impugned order P.1 was passed on June 29, 1983.

In view of discussion above, the impugned order P.1 cannot be sustained having been passed without application of mind on the part of the District Magistrate.

In the result, the writ is allowed and the impugned order of the District Magistrate dated June 29, 1983, (P.1) is quashed. The petitioner may be released, if not required in any order case.