Virsa Singh vs Union of India

S.D. Bajaj, J.

In criminal writ petition No. 231 of 1989 validity of detention order dated 17.11.1988 based on grounds of detention Annexure P.2 has been questioned by the detenupetitioner. Virsa Singh on the grounds that it was not passed by the detaining authority on due application of mind to the peculiar circumstances obtaining in the present case in regard to the detenupetitioner as also his coaccused Santokh Singh having both been released on bail in case FIR No. 101 dated 15.5.1988 on 30.7.1988, that the impugned order of detention is not based on subjective satisfaction of the detaining authority, that the detaining authority could not make the order of detention on a solitary, prejudicial act attributed to the detenupetitioner, that there was no nexus between the alleged prejudicial activity attributed to the detenupetitioner and the order of detention which was made seven months thereafter and that the representation made by the petitioner was not considered by the appropriate authority with due promptitude as envisaged in Article 22(5) of the Constitution.

In reply, the factum of the petitioner as also his coaccused Santokh Singh having been released on bail was admitted. It was, however, asserted that the representation dated 29.1.1989 was on careful consideration rejected by the State Government with due promptitude on 17.1.1989 and the petitioner apprised of it through the Superintendent Jail, Amritsar, on 23.2.1989, that there was close nexus between the prejudicial activities and the detention order Annexure P.1 and the time lag of seven months in between the two occurred because the Customs Authorities took their own time in imitating the proposal for preventive detention of the petitioner and that the impugned order of detention was passed by the detaining authority after due application of mind and on its subjective satisfaction. Hence, the writ merits dismissal.

I have heard Shri H.S. Mattewal, Senior Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner, and Shri S.S. Saron, AAG, Punjab, for the respondents, and carefully perused the relevant record.

The use of the word `probably'' in all the three grounds of detention set out in Annexure P.2 and the factum of detenupetitioner having been enlarged on bail on 17.8.1988 having not been adverted to in the detention order dated 7.12.1988 clearly indicates want of application of mind by the detaining authority and also warrants the conclusion that the impugned order was not based on its subjective satisfaction. In Anand Sakharam Raut v. State of Maharashtra and another, 1988(1) Recent Criminal Reports 619 (SC) : AIR 1987 Supreme Court 137 , their lordships of the Supreme Court observed :

"The one contention a strongly pressed before us by the petitioner''s counsel is that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13.1.1986, 14.1.1986 and 15.1.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial petitioner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention.

In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details.

We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeeded on the first ground.

We hold that there was clear nonapplication of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed."

Impugned order of detention thus gets vitiated on this score.

Again in Kanchanlal Maneklal Chokshi v. State of Gujarat and others, AIR 1979 Supreme Court 1945, their Lordships of the Supreme Court observed :

"In Ashok Murlidhar v. State of Gujarat, Divan, C.J., and Majumdar, J., appeared to think that the Bench of five judges of this Court which decided Haradhan Saha v. State of West Bengal, had taken a view different from that expressed in Bhutnath v. State of West Bengal, Abdul Gaffor v. State of West Bengal, Srilala Shaw v. State of West Bengal, Dulal Roy v. District Magistrate, Burdwan. We do not think that there is any such conflict as thought by the Division Bench of the Gujarat High Court. The principles emerging from a review of the above cases may be summarised in the following way : The ordinary criminal process is not to be circumvented or shortcircuited by ready resort to preventive detention. But the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mined of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu."

Impugned order of detention dated 17.11.1988 suffers from this vice as we I and is thereby rendered illegal.

For the reasons given above, criminal writ succeeds and is allowed, order of detention dated 17.11.1988 is quashed and the detenu is ordered to be set at liberty forward, if not required in any other case.

Petiion allowed.