Mangal Singh vs State of Punjab

Pritpal Singh, J.

In this petition Mangal Singh has sought the quashing of the detention order dated 31.12.1986 under Section 3 of the National Security Act (Annexure P/1) and the subsequent confirmatory order dated 13.3.1987 (Annexure P/4).

Admittedly, a murder case has been registered against the petitioner on 29.1.1986 at Police Station, Lopoke. Subsequently, a case under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, was registered him against on 25.8.1986 at Police Station, Gharinda. Next day, i.e. on 26.8.1986, another case under Section 25 of the Arms Act was registered against him in the same Police Station. He was arrested in these cases on 26.8.1986 and is under detention ever since.

The impugned detention order under the National Security Act was passed against the petitioner about four months thereafter on 31.12.1986 by the District Magistrate, Amritsar. This order was later confirmed by the State Government on 13.3.1987. These orders are sought to be quashed on the ground that the petitioner being already under detention in the aforesaid cases, there was no justification to pass detention order against him all over again under the National Security Act.

This point was considered by the Supreme Court in Binod Singh v. District Magistrate, Dhanbad and others, AIR 1986 Supreme Court 2090 and it was held as under :

"It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with the preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case, when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position then, however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper considerations."

In the instant case, although in the impugned detention order (Annexure P/1) it is mentioned that the detenu is in custody bat no indication was given that the detaining authority applied its mind to the question that the detenu might be released or that there was such a possibility of his release. Subsequently when confirmatory order (Annexure P/4) was passed by the State Government, the fact was not even taken into consideration that the petitioner was already in custody. This order was sought to be served on the petitioner on his residential address. Thus, there was no proper consideration of the fact that the petitioner was in custody or that there was any real danger of his release. In the facts and circumstances of this case, in the light of the dictum of the Supreme Court, the detention of the petitioner is not justified.

The learned counsel appearing for the State Government placed reliance on Alijan Mian v. District Magistrate Dhanbad and others, AIR 1983 Supreme Court 1130. This judgment is wholly inapplicable to the facts of the present case. In that case, the detaining authority was not only alive to the fact that the detenus were in jail custody but also that they were likely to be released on bail. The detaining authority was subjectively satisfied that the detenus, after release on bail, will indulge in activities prejudicial to the maintenance of public order. In such circumstances, the detention was upheld. It was however, observed that the position would have been entirely different if the petitioners were in jail and had to remain in jai1 for a pretty long time. In such a situation, there could be no apprehension of breach of public, order from the petitioners.

In the light of what is stated above, the impugned detention order Annexure P/1 and the confirmatory order Annexure P/4 are hereby quashed.