Ranjodh Singh vs State of Punjab and anr.

K.S. Bhalla, J.

Petitioner Ranjodh Singh was detained pursuant to an order of detention dated 20.3.1987 by the District Magistrate, Gurdaspur, who is respondent No. 2 herein, under Section 3(2) of the National Security Act, 1980. The detention is based on a couple of incidents and secret information as to the planning out of a programme, with regard to which three different first information reports were registered under various provisions of law, including two cases of murder, as mentioned in the grounds on which the detention order was based as reproduced in the translation Annexure P3. The latest of the said information reports is dated 27.5.1986.

The order of detention discloses that the petitioner was likely to indulge in activities prejudicial to the maintenance of public order and security of State. It is, however, not disputed that the petitioner was already in custody, on account of the above referred to first information reports at the time of the making of the order. When, admittedly, the petitioner was already in jail, he could not have possibly indulged in any such activities. Conspicuously enough, it is not mentioned in the detention order even vaguely that there was any possibility of the petitioner being released. In the given premises, the power of preventive detention, for obvious reasons, should not have been exercised.

From the material placed before me I find that there is no application of mind by the authority making the detention order and the same appears to have been made in a mechanical manner. I have gone through the detention order carefully. There is absolutely no mention in the order when the petitioner was arrested, since when he was an undertrial and if at all any step was taken by him for his release on bail. Who knows if the detaining authority had learnt that the petitioner was already in custody it might not have passed the detention order. These circumstances indicated total absence of application of mind on the part of the detaining authority while passing the order of detention.

Detention under National Security Act, admittedly is a preventive measure and not punitive action. It has been mentioned in the written statement filed on behalf of the State in recognition of the said position that had the petitioner not been detained he would have continued to indulge in prejudicial activities in future. Petitioner was in custody for quite some time before the making of the order and when possibility of his release has neither been touched in the detention order, question of his indulging in such activities in future in the absence of detention order could not arise. The jurisdiction of preventive detention and criminal prosecution may or may not be coextensive, but a person can indulge in prejudicial activities only if he is free to carry out these activities and is not in custody. 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 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 which is badly lacking in this case. In the absence of the awareness of the facts necessitating preventive custody, the order of preventive detention cannot be justified. If a man is in custody and there is no imminent possibility of his being released, as is the case here, petitioner having been made responsible for two cases of murder out of the three different cases registered against him, power of preventive detention should not be exercised. It was held in Binod Singh v. District Magistrate Dhanbad Bihar and others, AIR 11986 SC 2094, where the detention order under Section 3(2) of the National Security Act was served upon the detenu when he was already in jail in respect of a murder case and there was no indication of that 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 detention order, the continued detention of the detenu under the Act would not be justified. In the light of the said authoritative pronouncement, it cannot be said to be a fit case to resort to preventive detention and the petitioner is entitled to succeed on said short ground.

The result is that the order of detention dated 20.3.1987 of the petitioner is set aside. The writ petition is allowed to the extent indicated above. This, however, will not affect the detenu''s detention under the criminal case. If the detenu is released on bail in all the aforesaid cases, the matter of service of the detention order under the National Security Act on the aforesaid material may be reconsidered by the appropriate authorities in accordance with law. There is no statement in the petition that the detenu is on bail, there will, be no order for release of the detenu.