Swaran Singh vs State of Punjab and ors.

Pritpal Singh, J.

The petitioner has been detained under Section 3(3) of the National Security Act, 1980 in pursuance of the detention order dated July 23, 1986 (Annexure P. 1) passed by the District Magistrate, Gurdaspur. In this writ petition the detention is sought to be quashed.

The grounds of detention reveal that a case under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, was registered against the petitioner on April 21, 1986 by means of a First Information Report No. 73 at Police Station, Dhariwal. The petitioner via taken in custody during the investigation of that case. It was apprehended that there was every likelihood that the petitioner may again indulge in prejudicial activities in the event of his being released on bail. This was the ground on which the impugned detention order (Annexure P. 1) was passed.

The learned petitioner''s counsel has raised two points : 1) The petitioner was already in detention in the aforesaid case when the impugned detention order was passed. Hence a second order of detention could not be passed. 2) Merely because the detaining authority was apprehensive that in case of the petitioner being released on bail, he would again indulge in prejudicial activities it was no ground to pass the impugned order.

Adverting to the first ground the view of the Supreme Court in respect thereof in Biru Mahato v. The District Magistrate, Dhanbad, 1982 C.A.R. 350 (SC) may be noticed. It was held that as an abstract proposition of law the detention order can be made in respect of a person who is already detained. But it is subject to the bona fide satisfaction of the detaining authority that the detenu was likely to be released from detention in near future and thereafter his indulging in prejudicial activities was apprehended. The relevant observations of the Supreme Court in this respect may be reproduced to advantage as under :

"A. An abstract proposition of law, there may not be any doubt that S. 3(1) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the consideration of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment for a very short period. say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who his been sentenced to ten years'' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.

In the present case it is not even suggested that the detaining authority anticipated that the petitioner was not likely to be convicted and sentenced in the case in which he was already detained, and was likely to be released in near future and that on this account it was found necessary to detain him under the National Security Art. It, therefore, cannot be said that the detaining authority arrived at the subjective satisfaction after due application of mind. The lack of application of mind in passing the detention order is obvious.

In dealing with the second ground for quashing the detention order, the judgment of the Supreme Court in Ramesh Yadav v. District Magistrate Etah and others, 1986(1) C.L.J. (C & Cr. 1603, is relevant. In that case also the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities. It was held that if the apprehension of the detaining authority was true the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. On these considerations the preventive detention order was quashed and the detenu was set at liberty. The present case is fully covered by the dictum of the Supreme Court in the case of Ramesh Yadav (supra).

For these reasons the impugned detention order is quashed.