Swaran Singh vs State of Punjab

S.D. Bajaj, J.

Detenu petitioner Swaran Singh is alleged to have made two inflammatory speeches for inciting disharmony between Hindus and Sikhs on May 19, 1988 and May 28, 1988. In respect of the second speech only First Information Report No. 61 was registered against him in Police Station Dhariwal under Section 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 on May 28, 1988 and the petitioner was taken into custody. While the petitioner was still in custody at District Jail, Sangrur, respondent No. 1 State of Punjab served upon him detention order Annexure P.1 bearing No. 5422H III (NSA88)/3721 on June 24, 1988 based on grounds of detention detailed in Annexure P.2.

Criminal Writ Petition No. 1501 of 1988 has been filed by the detenu for getting detention order Annexure P.1 quashed and obtaining a direction for his release forthwith. It has been urged therein that order Annexure P.1 was passed by the Detaining Authority mechanically without any application of mind and its subjective satisfaction, that for the violation of law attributed to him in making inflammatory speech dated May 28, 1988, the petitioner was being prosecuted separately on the basis of First Information Report No. 61 of that date and that there was no question of his indulging in activities prejudicial to the maintenance of public order while behind the bars; more so when he had not even asked for his release on bail and as such the detention order passed against him by the respondentState was punitive in nature and that the petitioner was not supplied the supporting material on which the detention order was based and thereby prevented from making his representation against illegal detention.

In reply filed on September 16, 1988 the respondentState conceded that the petitioner was already under detention in Sangrur Jail when the impugned order Annexure P.1 was made. It was, however, asserted that the impugned order of detention was passed on thoughtful consideration, subjective satisfaction and required an application of mind by the detaining authority preventing the petitioner from indulging in activities prejudicial to the maintenance of public order and was thus not punitive in nature and that the supporting material of the impugned order of detention was duly supplied to the petitioner against proper receipt.

I have heard Shri Navkiran Singh, Advocate for the petitioner, Shri S.S. Saraon, A.A.G., Punjab for the State and have carefully gone through the pleading of the parties.

In the detention order Annexure P.1, while making it, the Detaining Authority observed, "Now, therefore, the President of India while being conscious of the fact that you are already in custody and you have been taking steps to get yourself released from the custody as per information received from the reliable sources and there is every likelihood of your being released from custody and in the event of your release from custody you are likely to resume such prejudicial activities in future and there is, thus, compelling necessity to pass the detention order against you though you are already in custody at present, in exercise of the powers conferred by Section 14A(1) read with Section 3(2) and Section 14(2) of the National Security Act, 1980 (No. 65 of 1980) is pleased to order that the aforesaid Swaran Singh be detained" It is, however, conceded that the petitioner was confined in Sangrur Jail before the making of this order against him and had not taken any steps to get himself freed. While in jail, the petitioner could not presumably resume his prejudicial activities. Had the factum of petitioner not having taken any steps to get himself freed from jail custody been in the knowledge of the authority passing the detention order it is just possible that it may have taken a different view of the situation and not made the detention order at all. It was observed by the Supreme Court in Gulab Mehra v. State of U.P. and others, 1987(2) Recent Criminal Reports 416 that omission on the part of Detaining Authority to consider this aspect of the matter before making the detention order indicates want of application of mind on its part and takes away from it subjective satisfaction and, therefore, the detention order Annexure P.1 gets invalidated on this score.

To the same effect are the observations made by the Supreme Court in Smt. Shashi Aggarwal v. State of U.P. and others, 1988(1) Recent Criminal Reports 579 , which reads :

"Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the state thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarge on bail, would act prejudicially to the interest of public order. Where the detention order was passed against the detenu, who was already in jail, merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and there was no material on record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of public order, the order of detention would be illegal."

Again in Fazal Ghoshi v. State of U.P. and others, 1987(2) Recent Criminal Reports 321(SC) : AIR 1987 Supreme Court 1877 , their Lordships of the Supreme Court, in an identical case of inciting people to lawlessness through inflammatory speeches, observed :

"Learned Counsel for the detenus challenges the detention orders on several grounds. In our opinion, it is not necessary to consider all the points raised because it appears to us that the cases can be disposed of on short ground. The contention on behalf of the detenus is that there was no material before the District Magistrate on the basis of which he could form the opinion that the detenu would act in future in a manner prejudicial to the maintenance of public order. It is pointed out that the National Security Act provides for preventive detention, and preventive detention is intended where it is a apprehended that the person may act prejudicially to one or more of the considerations specified in the statute. There is no doubt that preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed. Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the section. In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order. The District Magistrate, it is true, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all".

Since the grounds of detention Annexure P.2 were duly supplied to the petitioner alongwith the detention order Annexure P.1 on June 24, 1988 the ground alleged in the writ petition for invalidating the detention order Annexure P.1 was not pressed by the learned Counsel for the petitioner in the course of arguments.

For the reasons given above, the writ successeds and is allowed. Detention order Annexure P.1 is based on grounds of detention. Annexure P.2 is quashed and the petitioner is ordered to be set at liberty forthwith if not required in any other case.