Jaimal Singh vs District Magistrate, Jallandhar

S.S. Sodhi, J.

The challenge here is to the detention of the petitioner Jaimal Singh under the provisions of the National Security Act, 1980, on the ground that all the documents and material relied upon in the order of the detention were not supplied to him. There was thus, it was argued, non compliance with the constitutional duty cast upon the detaining authority under Article 22(5) of the Constitution which rendered the continued detention of the petitioner void. Adverted to in this behalf was the report of the Senior Superintendent of Police Jallandhar.

A reading of the impugned detention order annexure P/1 would show that it was on "the basis of the report of the Senior Superintendent of Police, Jalandhar and other relevant material submitted by the Senior Superintendent of Police that the detaining authority arrived at the requisite satisfaction that it was necessary to detain the detenu.

The stand of the District Magistrate, Jalandhar, with regard to the said report of the Senior Superintendent of Police, as expressed in the return, that it was "merely a proposal bringing to the notice of the District Magistrate, Jalandhar bare facts about the activities indulged in by the detenu" and that in exercising his discretion reliance was actually placed upon other material on record, copies of which were supplied to the petitioner. Mr. D.S. Brar, Assistant Advocate General, Punjab, on his part, sought to brand this report as a mere innocuous communication from the Senior Superintendent of Police to the District Magistrate forwarding material relevant to the case of the petitioner to show that this report was of no legal consequence. Support was sought from the Judgment of the Supreme Court in Mst. L.M.S. Ummu Saleema v. B.B. Gujral and another, AIR 1981 SC 1191, where it was held that failure to supply documents and material causally or passingly referred to in the court of narration of facts in the ground of detention and which are not relied upon by the detaining authority in making the detention order, would not render the detention illegal.

Clearly, Saleema''s case (supra) has not applicability here not can the report of the Senior Superintendent of Police possibly be so construe or interpreted. This report reads as under :

"Enclosed please find a History of the case of Jaimal Singh cited as subject which will show that he has been acting in a manner prejudicial to the National Security Act, 1980 as amended uptodate.

In order to prevent him from acting in a manner prejudicial to the maintenance of PUblic order it is recommended that action under section 3(2) of the National Security Act, 1980 be taken against him. A District Magistrate is empowered to take action under the said Act within the area of his jurisdiction.

It is, therefore, requested that necessary orders in this respect be issued. Other relevant material is also sent herewith."

It will be seen that the report contains the opinion as also the recommendation of the Senior Superintendent of Police and by the very nature of its import and content, it cannot but be assumed to have influence the mind of the detaining officer. It was, therefore, incumbent to supply a copy thereof to the petitioner to enable him to make an effective representation against the order of detention.

It is well settled, as was held by the Supreme Court in Kamla, Kanhaiyalal Khushalani v. State of Maharashtra and another, AIR 1981 SC 814, that documents and materials relied upon in the order of detention, from an integral part of the grounds and must, therefore, be supplied to the detenu pari passu the grounds of detention. A similar view was expressed in the earlier case of Khudiram Dass v. The State of West Bengal and others, AIR 1975 SC 550, where it was observed, "It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention, must be communicated to the detenu. This is the plain requirement of the first safeguard in Article 22(5)".

In dealing with this matter, it would also be pertinent to recall the observations of Tulzapurkar, J. in Ibrahim Ahmad Batti v. State of Gujarat and others, AIR 1982 SC 1500, "preventive detention is serious invasion of personal liberty and the normal methods open to a person charged with the commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and therefore in preventive detention jurisprudence whatever little safeguards, the constitution and the enactment authorising such detention provide assume utmost important and must be strictly adhered to........"

The order of detention cannot, therefore, be sustained and is accordingly hereby quashed and the petitioner is directed to be released forthwith.

JUDGMENT accordingly.