Kulbir Chand vs District Magistrate and Another

I.S. Tiwana, J.—The petitioner''s detention with effect from 3rd June, 1986, u/s 3 of the National Security Act, 1980, was set aside by me vide my order dated 25th November 1986 Cri CC 583, primarily for the reason that the detention of two other persons namely Achal Kumar and Banwari Lal who had been similarly detained along with the petitioner as a result of the same activity or the incident attributed to them had been revoked by the State Government in the light of the opinion of the Advisory Board, and therefore, his dentention too could not be upheld. For this conclusion, I also relied upon an earlier judgment of this Court in CrL Writ Petn. No. 962/1986 (Major Singh v. State of Punjab) decided on October 30, 1986 (reported in (1987) 2 CLR (Cri) 678), which judgment in turn, was based on the ratio of the Supreme Court judgment in Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Others, , wherein it was ruled:

The opinion of the Advisory Board that there was no sufficient cause for Shamsi''s detention may not have been binding on the detaining authority which ordered the detention of the petitioner but, it cannot be gainsaid that the fact that the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in this case. Since three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court, we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only. That ground is similar to one of the grounds on which Shamsi was detained, the transaction being one and the same, as also the incident on which the two orders of detention are based. That is why the opinion of the Advisory Board in Shamsi''s case becomes relevant in the petitioner''s case. The failure of the State Government to place before the detaining authority in the instant case, the opinion which the Advisory Board had recorded in favour of a detenu who was detained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding. In other words, the detaining authority did not, because it could not apply its mind to a circumstance which, reasonably, could have affected its decision whether or not to pass an order of detention agains the petitioner.

The said order of mine dated 25th November, 1986 1986 Cri CC 583 however, was set aside by their Lordships of the Supreme Court vide order dated 28th August, 1987, while granting SLP (Cri.) No. 662/87, with the following observations:

After hearing learned Counsel for the parties, we are distressed to find that there was complete non-application of mind on the part of the learned Judges. While it is true that they were entitled to come to a particular conclusion upon the facts of a given case, they could not possibly have quashed the impugned order of detention merely on the ground that detention orders in similar cases had earlier been revoked.

This is how the case is before me again.

It is urged by Mr. Ghai, learned senior advocate for the petitioner, that the instant case is completely covered by the ratio of the decision in Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Others, inasmuch as while affirming the detention of the petitioner vide order dated 22nd July, 1986, the State Government did not take into consideration the earlier revocation of detentions of Achal Kumar and Banwari Lal referred to above, It is, however, contended by Mr. Saron, the learned Assistant Advocate-General, chat no specific plea to the effect that while a ffirming the detention of the petitioner the material leading to the revocation of the detent ions of Achal Kumar and Banwari Lal was not before the State Government has been taken in this petition, and, therefore, this ground of attack is not available to the petitioner''s counsel. 1 see no merit in this stand of the learned State counsel in view of the latest pronouncement of their Lordships of the Supreme Court in Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, wherein it has been held:

It is not proper to disallow the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioners cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. It is well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Article 22(5).

Factually, it is conceded by Mr. Saron who has the original records with him that no material pertaining to the revocation of the detentions of Achal Kumar and Banwari Lal, as referred to above, was either before the State authorities or was taken into consideration at the time of affirming the detention of the petitioner. He also does not dispute the fact that the grounds of detention supplied to all the three detenus, i.e. the petitioner, Achal Kumar and Banwari Lai,. were similar and related to the same incident. In the face of this admitted position and in the light of the observations made by their Lordships of the Supreme Court in Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Others, , I find it difficult to sustain the submission of Mr. Saron that the affirming of the detention of the petitioner vide order dated 22nd July, 1986, was justified in any manner.

There is yet another infirmity from which the impugned detention order dated 3rd June, 1986, suffers. It is the conceded position that prior to the passing of this order of detention, the petitioner had already been taken in custody along with others for the commission of offences Under Sections 436, 452, 506, 323, 148, 149 I.P.C., read with Sections 3 and 4 of the Terrorists Disruptive Activities (Prevention) Act, 1985. Therefore, there was no danger of the petitioner carrying on his nefarious activities in any manner at the time when the detention order was passeu on 3rd June, 1986, It has repeatedly been said by the Final Court as well as the different High Courts in the country that the purpose of such a detention is preventive and not punitive. In the light of the provisions of the Terrorists Disruptive Activities (Prevention) Act, 1985, there was no likelihood of the petitioner being released on bail in the near future. It has recently been ruled by the Supreme Court in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, that "it is well settled in our Constitutional framework that 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. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised." In the instant case, when the actual order of detention was served upon the detenu he was in jail. There is no indication that this factor or the question that the detenu might be released or that there was such a possibility of his release was taken into consideration by the detaining authority properly and seriously before the service of the order. Binod Singh''s was a case where the detenu was not even in custody at the time of the passing of the detention order but he had surrendered to such custody before the service of the detention order. As against this, the instant case is one where the petitioner was in custody even prior to the passing of the detention order.

In order to be fair to Mr. Ghai, the learned Counsel for the petitioner, it must be noted here that he even highlighted the proposition that the impugned order of detention passed on 3rd June, 1986, had exhausted itself by now, and, therefore, the petitioner who had been set at liberty as a result of the order passed by me on 25th November, 1986 1986 Cri CC 583 cannot be taken into custody or detained any further. I, however, do not find any merit in this submission in the light of the following observations made by their Lordships of the Supreme Court in Poonam Lata Vs. M.L. Wadhawan and Others, while dealing with a case where a detenu who had been released on parole and the question was as to whether the period for which he was on parole was to be counted towards the period of detention:

The running of the period recommences then and a total period of one year has to be counted by putting the different periods of actual detention together.

It is the admitted factual position that by the time the petitioner had been set at liberty as a result of my order dated 25th November, 1986 1986 Cri CC 583 he had not completed the period of detention, i.e. one year, with effect from 3rd June, 1986.

For the foregoing reasons 1 allow this petition and set aside the impugned order of detention of the petitioner.