Yadvinder Singh vs State of Punjab

K.S. Bhalla, J.

Petitioner Yadvinder Singh @ Bira was detained pursuant to order of detention dated 29.12.1986 (Annexure P 1) issued by the District Magistrate, Patiala who is respondent No. 2 herein under Section 3 (2) of the National Security Act, 1980. The detention is based on two criminal cases FIR No. 168 dated 11.9.1986 under Section 25 of the Arms Act and FIR No. 67 dated 14.7.1985 under Section 307/34/392/511 of the Indian Penal Code, as detailed in the grounds of detention (Annexure P 3), which further makes clear that the petitioner was arrested on 11.9.1986. He was in custody since then till the making of the order of detention continuously. Subsequent confirmatory order is dated 13.3.1987 (Annexure P 2).

Action taken against the petitioner is a preventive measure and it is mentioned in the impugned order itself that the same was made with a view to prevent Yadvinder Singh alias Bira from acting in a manner prejudicial to the maintenance of public order in future. When petitioner, admittedly, was already confined in jail he could not have possibly indulged into any such activity which could provide jeopardy to the maintenance of public order. It is mentioned in the detention order `in case he is released on bail or otherwise'', but it has not been spelt out how if at all the petitioner was going to be released. The order does not contain if the petitioner had moved any bail application or a bail order had been made in his favour. In the absence of any step taken by the petitioner towards his release. In this situation of the matter it was not proper to exercise power of preventive detention.

I have gone through the detention order. There is absolutely no mention in the order if the petitioner had taken any step for his release on bail. It is clearly mentioned in the petition that trial of the criminal cases was not being held and that assertion of his remains uncontroverted in the written statement filed on behalf of the respondents. Question of release of the petitioner otherwise than on bail thus too was not possible. Detention order does not spell out the basis on which release otherwise was expected. In the absence of such facts there does not appear to be any application of mind by the authority making the detention order. The same perhaps was made just in a mechanical manner and can well be treated as speculative.

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 as shown above is badly laking in this case. If a man is in custody and there is no imminent possibility of his being released, power of preventive detention cannot be exercised. If any authority is needed on the point, Ramesh Yadav v. District Magistrate Etah and others, AIR 1986 SC 315 and Binod Singh v. District Magistrate Dhandbad, Bihar and others, AIR 1986 SC 2090, can be looked into with advantage, wherein it is provided that it is not proper to pass such order against a person who is in custody in the absence of imminent possibility of his release.

For the foregoing reasons it cannot be said to be a fit case to resort to preventive detention and the petitioner is entitled to succeed on that short ground that he was already in custody for more than three months and so could not have possibly indulged in any prejudicial activity.

To sum up I hold that there was clear nonapplication of mind on the part of the detaining authority and that there was no imminent possibility of release of the petitioner when the order of detention was passed. The order of detention dated 29.12.1986 and subsequent confirmatory order are, therefore, quashed. The writ petition is allowed to the extent indicated above. This, however, will not affect detenu''s detention under the criminal cases. There is no statement in the petition that the detenu is on bail. There will, therefore, be no order for release of the detenu.