Sukhjinder Singh vs State of Punjab

Pritpal Singh, J.

The petitioner, who has been detained by the State of Punjab under the National Security Act (hereinafter called `the Act''), has challenged his removal to Delhi in the Tihar Jail in this petition under Article 226 of the Constitution of India.

The petitioner was arrested on October 27, 1986, under the National Security Act, and was taken to the District Jail, Kapurthala. From there, on the same day, he was transferred to the Tihar Jail in Delhi. This removal of the petitioner from the State of Punjab to the Jail in Delhi has been assailed by him on various grounds.

By Section 5 of the Act, every person in respect of whom a detention order has been made is liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify; and (b) to be removed from one place of detention to another place of detention, whether in the same State or in another State, by order of the appropriate Government. THe removal from one State to another is subject to the express consent of the Government of the other State.

The first contention on behalf of the petitioner is that he has been removed from the State of Punjab to Tihar Jail in Delhi without orders of the Punjab Government and without obtaining consent of Delhi State. It is said that this has been done in direct violation of the provision of Section 5 of the Act. These allegations have been denied by the respondentState of Punjab. On perusal of the relevant record placed before me by the learned Counsel appearing for the State, I find that the petitioner was removed from the District Jail, Kapurthala, to the Tihar Jail in Delhi under orders of the Chief Minister of Punjab and with the consent of the Delhi Administration. There is, therefore, no merit in the contention that the petitioner had been removed from the State of Punjab to Delhi without the orders of appropriate Government or without the consent of the other State.

It is next contended that the petitioner should have been detained in preventive custody in the State of Punjab, to which he belongs, and there was no sufficient ground to remove him to the Tihar Jail in Delhi. In support of this contention my attention was drawn to A.K. Roy v. Union of India and another, AIR 1982 Supreme Court 710. It is held by the Supreme Court in this judgment that the normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence and if he is kept in detention in a far off place it is a punitive measure by itself. It was clarified that the requirement of administrative convenience, safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides, but that can only by way of an exception and not as a matter of general rule. Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be sent to any far off place which by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled.

In the present case the respondentState Government as well as the Chief Minister of Punjab have given reason for removing the petitioner from the State of Punjab and detaining him at Delhi. In the return filed by the Under Secretary to Government of Punjab Home Department it is stated that it was necessary to detain the petitioner outside the State of Punjab keeping in view the extent and nature of his prejudicial activities for reason of security of State, administrative convenience and public safety. It was further elucidated that if the petitioner was detained in any jail in Punjab he was likely to incite the communication violence through his visitors in the Jail and his supporters were likely to attempt his release from Jail by illegal means. It is said that the very object for which the petitioner has been detained would have been frustrated if he was kept in Punjab.

The Chief Minister of Punjab also filed an affidavit in support of this contention and he has averred that the petitioner has been transferred to a jail in Delhi on account of grave nature of prejudicial activities indulged in by him and the overall prevailing circumstances in the State of Punjab.

As held in Geetinder Kaur v. State of Punjab and others, 1985(2) Recent Criminal Report 292 : AIR 1985 Supreme Court 1409 , "the place of detention is a matter for the administrative choice of the detaining authority, and a Court would be justified in interfering with that decision only if it was in violation of any specific provision of the law or was vitiated by arbitrary considerations and mala fides." The affidavits filed by the respondents indicate that mind had been applied to the facts and circumstances of the case and it was felt necessary to detain the petitioner at Delhi which is not very far from the State of Punjab. There is no material on the record to indicate that the decision of the Punjab Government in this respect is in violation of any specific provision of law or is vitiated by arbitrary considerations or is mala fide. In view of the law laid down by the Supreme Court in the case of Mrs. Geetinder Kaur (supra), the law does not allow me to interfere in this matter.

It is then contended that the petitioner''s detention at Delhi is punitive in character because his life is in danger in Tihar Jail. It is said that whenever an incident happens in Punjab it has repercussion in Delhi. As such the petitioner''s apprehension is that his detention in a Delhi Jail is fraught with dangerous consequences and he does not feel secure. In reply to this contention the Superintendent of District Jail, Tihar, has stated in his affidavit that apprehension of the petitioner in respect of his safety is misconceived. He is kept separately from all other prisoners and adequate precaution for his safety have been taken. In view of the assurance regarding the safe detention of the petitioner given by the Superintendent Jail, detention cannot be held to be punitive. Simply on the apprehension of the petitioner his detention in Tihar Jail, Delhi, cannot be considered unlawful or punitive in character. No such material has been placed on record to show that the petitioner''s safety while being detained in Delhi is not secure.

It was argued on behalf of the petitioner that on the averment made by the Superintendent Jail, it appears that the petitioner is being kept in solitary confinement which itself is a ground to hold the detention in Delhi punitive. I see no merit in this contention. The lodging of the petitioner separately from other prisoners does not tantamount to solitary confinement. In the affidavit of the Superintendent Jail, it is mentioned that the petitioner is being given special class treatment; he is provided with special diet and he was availed of 70 interviews with his friends, relatives and lawyers after his detention upto 19th of December, 1986. The learned counsel for the petitioner has been unable to satisfy me that the nature of the petitioner''s detention calls for interference by this Court on the said ground.

For all these reasons I find myself unable to grant the relief sought by the petitioner in respect of the place of detention.

Before parting with this judgment I would like to draw the attention of the State Government to the following observations of the Advisory Board consisting of three members, including a retired Judge of the High Court, to whom the petitioner''s case had been referred and who held the sitting at Tihar Jail, Delhi.

"The Board has been the environment in Central Jail, Delhi, and is of the view that it is not this jail where the detenu should be kept in the present conditions."

Although the advise is not binding on the State Government nor on its basis the detention of the petitioner in Delhi can be held to be punitive or otherwise bad in law; I would recommend to the State Government to consider the petitioner''s prayer in light thereof. This opinion is given by three highly placed individuals who had the benefit of visiting the place of petitioner''s detention and seeing the conditions first hand.

Since the petitioner''s detention in Delhi is neither in violation of any specific provision of law nor is vitiated by arbitrary considerations and mala fides, I find myself unable to interfere with the same. This writ petition is, therefore, dismissed.