Kuldip Singh vs State of Punjab and anr

K.S. Bhalla, J.

Petitioner Kuldip Singh was detained pursuant to an order of detention dated 28121987 issued by the District Magistrate, Amritsar who is respondent No 2 herein under Section 3 (2) of the National Security Act, 1980 Annexure 1. Translation of he grounds of detention is annexed with the present petition through which the said detention order is sought to be quashed as Annexure 2.

Detention under National Security Act is preventive in nature and is ordered, as is indicated in Annexure I as well, to chock prejudicial activities in which the detainee is likely to indulge. Petitioner Kuldip Singh admittedly was in custody at the time of passing of the detention order. It is clear from Annexure 2 that he was arrested on 1991987 that is more than three mouths prior to the passing of the detention order. As such, at the relevant time, petitioner could not have possibly indulged into any prejudicial activities which were required to be checked. It is further clear from Annexure 2 that the case in which petitioner was arrested on 1991987 was still pending investigation, meaning thereby that the petitioner was yet without trial. No doubt, it is mentioned in the detention order Annexure I that Kuldip Singh was taking steps to get himself released from the custody but those steps have not been spelt out therein. The same appears to be imaginary in view of the specific allegation of the petitioner in the present writ petition that he never applied for bail and there was no possibility of his being released which assertion of his has not been specifically controverted in any of the two affidavits furnished by the respondents. A citizen of free country has the right to have recourse to law and is well within his powers to move the Court for bail. He cannot possibly be interdicted from moving the Court for bail by clamping an order of detention. If the State thinks that he does not deserve bail, the State can oppose the grant of bail in Court. At any rate, the facts as placed on the record in this case bail down to inaction with regard to bail and particularly when the case in which the petitioner was arrested, admittedly, as at the stage of investigation, there was no possibility of his coming out and thus there was complete absence of any scope of indulging into prejudicial activities so as to call for a preventive action. The detention order accordingly appears to be in the nature of punitive action rather than preventive.

Again, as is clear from Annexure 2, it is a case of single incident and thus may be taken to give rise to a law and order problem rather than a case relating to public order. In the absence of any other incident or any background to give rise to any such inference, it could not be presumed that petitioner possessed propensity for objectionable and Prejudicial activities. Where the order of detention is passed against the detenu on the basis of solitary ground as is the case here, it is difficult to infer that the act alleged to have been committed by him would have disturbed public order as distinct from law and order, or that single act committed by the detenu was of such a character that it could reasonably be inferred by the detaining authority that if not detained he would be likely to indulge in such activity in future which may call for preventive action. The order of detention of the petitioner would not be sustainable on that ground as well.

Further, there does not appear to be proper application of mind by the detaining authority. More mention of awareness of a detenu being already under arrest or bald statement with regard to compelling reason for preventive action is not sufficient. On the other hand, record must show that the detaining authority was consciously aware and compelling reasons actually existed. No doubt, it has been mentioned in the detention order more than once that petitioner was in custody at the time of making of the order but its terminology makes it almost certain that the detaining authority was not conscious of that fact. It is mentioned in para No 2 that Kuldip Singh son of Hazara Singh Jat be arrested and detained which necessarily indicates that the detaining authority was under the impression that the detenu was yet to be arrested. Again, it is mentioned in the final endorsement with regard to execution of the order that Senior Superintendent of Police, Amritsar shall lodge Kuldip Singh in Central Jail, Amritsar. A person who is already inmate of a Jail cannot possibly be lodged in that Jail. Lodging presupposes physically putting in or placing inside a prison. In this situation of the mater who knows that mention with regard to the factum of custody of the petitioner was made in routine by the clerical staff without conscious awareness of the detaining authority. The facts that petitioner had not moved any application for bail and the case was not yet put to trial provide some such circumstances which indicate that there was no compelling necessity for a preventive action. When despite that, detaining authority talks of such necessity for effecting preventive detention, there cannot be a better example of nonapplication of mind. For this reason too, detention of the petitioner becomes illegal.

The latest authority of the apex Court on the subject in the given circumstances is reported as Vijay Kumar v. Union of India others, 1988(1) R.C.R.(Criminal) 602 : A.I.R. 1988 Supreme Court 934 wherein it has been categorically held that two facts must appear from the grounds of detention, namely (1) awareness of the detaining authority of the fact that the detenu is already in detention and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention. Both these essential ingredients badly lack in the instant case and, therefore, by the application of the ratio of the said authoritative pronouncement, detention of the petitioner cannot possibly sustain.

For the foregoing reasons, this writ petition is accepted, detention order dated 28121987 (Annexure 1) is set aside and detention of petitioner Kuldip Singh son of Hazara Singh is quashed.

Revision accepted.