Pritpal Singh vs State of Punjab and anr.

K. S. Bhalla, J.—Petitioner Pritpal Singh was arrested on 821988 in case F.I.R. No. 34 dated 821988 under Section 216A of the Indian Penal Code, etc. and while he was under detention in Central Jail, Amritsar the detention order Annexure P/I dated 3031988 i.e. after 13/4 months of his arrest, was passed by District Magistrate, Amritsar, who is respondent No. 2 herein, under Section 3(2) of the National Security Act, 1980. The detention order is based on the solitary incident with regard which the above referred to case was registered. Through present writ petition the said detention order has been assailed by the petitioner.

It has been presumed in the detention order that the petitioner is likely to indulge in activities prejudicial to the maintenance of public order and security of State and it has been mentioned that with a view to prevent him from acting in such prejudicial manner that detention order was made. In reply to the writ petition as well, it has been said that the petitioner was likely to indulge in prejudicial activities on account of his propensity towards such activities which are prejudicial to the security of the State and maintenance of public order. I am afraid that a conclusion in favour of such propensity may not be justifiably possible on the basis of solitary instance. It is obvious from the grounds of detention (translation Annexure P/2) that only case FIR No. 34 of 1988 was made basis of the detention order. The activities of the petitioner have been described therein through two paras only, first of which gives the details of case FIR No. 34 of 1988 and the second relates to interrogation of the petitioner by ASI Joginder Singh during investigation of the said case. Not only that cannot be treated to be any separate circumstance, it being statement of an accused before a police officer during investigation, is neither admissible and danger of reliance thereupon for the sake of detention under National Security Act does not need to be emphasised. Thus facts and circumstances of the case do not provide basis for justifiable conclusion that petitioner Pritpal Singh had propensity towards prejudicial activities so as to call for detention under National Security Act.

No doubt it is the subjective satisfaction of the authority passing the detention order which is material in this respect but an administrative order is always open to judicial review and mere mention of subjective satisfaction when the attending circumstances do not permit the same, cannot be treated to be sufficient. Respondent No. 2, i.e. the District Magistrate. Amritsar has stated in his reply to para No. 2 that the activities of the petitioner were continuous and so interlinked that the answering respondent was satisfied that the petitioner was likely, even in future, to indulge in prejudicial activities. When the detention order is based or single instance I fail to understand where was the continuity of activities. In fact, through his said reply respondent No. 2 has in a way admitted that some sort of continuity of prejudicial activities was necessary to justify such detention and the solitary instance provided by case FIR No. 34 of 1988, perhaps was not enough for the purpose.

In any case, the situation in which the petitioner was placed, it was not possible for him to indulge into such activities which are prejudicial to the security of the State and maintenance of the public order. Admittedly, he was in custody at the time of the making of the detention order. When the petitioner was already in jail he could not have possibly indulged in any such activity. He could act in such, manner only after his release and that is why it is suggested in the reply filed on behalf of respondent No. 1 that District Magistrate, Amritsar, was satisfied that in the event of petitioner''s release from custody on bail or otherwise he was again likely to indulge in prejudicial activities. It is, however, nowhere suggested in the detention order that petitioner was likely to be released in the immediate future or he had taken any specified steps for his release. Absence of such mention in the detention order rather indicates lack of application of mind by the authority passing the detention order. Even if it may be said that the authority is not required to give detailed reasons, it goes without saying that it must appear from the order that the same was passed after application of mind taking all factors into consideration. It is not possible to supplement by pleading fresh reasons in the reply. It is also said in para No. 4 of the reply of respondent No. 1 that the detaining authority took into account the rational, proximate, past and present conduct and antecedent history of the petitioner as also his tendency and inclination. towards his future conduct while reaching at subjective satisfaction. No such mention is made in the detention order Annexure P1 or grounds for detention (translation annexure P2). These pleas therefore have to be rejected as after thought. Even otherwise, when a statutory functionary makes an order based on certain grounds its validity must be judged by the reason mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge could be validated by an additional ground later brought out. Thus the very basis of the detention stands knocked out because there was no possibility for the petitioner to act in prejudicial manner.

From the material placed before me, I find that there was no application of mind by the authority making the detention order and the same appears to have been made just in a mechanical manner. As already referred to above, although it is admitted in the detention order that at the time of its making, petitioner was in custody in Central Jail, Amritsar, it has not been properly mentioned therein that he was making any effort to get himself release or that there was any possibility of the petitioner of release in near future so as to act in a prejudicial manner. Again, on the one hand it is mentioned in the detention order itself that the petitioner was then in custody and on the other hand, while issuing a direction to the Senior Superintendent of Police, Amritsar, it is mentioned in the detention order that he shall lodge Pritpal Singh in Central Jail, Amritsar. A person who is already an inmate of Central Jail Amritsar cannot possibly be lodged therein after making of the detention order. Allegation of the petitioner made in this respect in para No. 4 of the writ petition could not be specifically met with by any of the two respondents. In para No. 3 of the detention order mention with regard to taking steps by Pritpal Singh to get himself released from custody is completely vague. Steps taken by him, if any have not been spelt out in the detention order. No such step has either been pointed out in the replies filed on behalf of the respondents. No doubt it has been mentioned in the replies that petitioner had moved an application but without giving its date or suggesting when that bail application was moved. If it was moved after the etc., order the same me cannot be taken to be a step taken for release which was considered at the time of the making of the detention order. Had the detaining authority known then about anysuch bail application, it would have made its mention in the detention order.

Further, it is mentioned in para No. 3 of the detention order that Pritpal Singh was as already in judicial custody, in cases registered against him. Admittedly only one case was registered against the petitioner and use of plural terminology also confirms that there was no proper. application of mind by the authority making the detention order and the same perhaps was made just in a mechanical manner or as a routine step. If there had been proper application of mind, the District Magistrate, Amritsar, would not have mentioned in the detention order that the petitioner was in judicial custody in more than one cases or number of cases registered against him was plural.

Detention under National Security Act is a preventive measure and the same cannot be exercised as a punitive measure. Petitioner was in custody for quite some time before the making of the detention order and when possibility of his release has not been properly made out in the order annexure P/1, question of his indulging in such activities in future in the absence of impugned detention order could not arise. Preventive detention is to be resorted to in exceptional cases and should be brought out with great deal of circumspection. There must be awareness of the facts in respect of preventive custody of a person for social defence which is badly lacking in this case.

From what has been said above, it cannot be said to be a fit case to resort to preventive detention. There was a clear nonapplication of mind on the part of the detaining authority when the order of detention was passed. In the result, the order of detention dated 30.3.1988 is set aside. The writ petition is allowed to the extent indicated above. The detenu is ordered to be released forthwith unless he is required in any other case or wanted otherwise than detention under National Security Act.