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Judgment
Pritpal Singh, J.
The District Magistrate, Gurdaspur, vide an order dated July 28, 1986 (Annexure P.1) has detained the petitioner Narinder Singh under Section 3(3) of the National Security Act, 1980. This order was confirmed by the State Government vide an order dated September 25, 1986 (Annexure P.3). In the instant petition the order of detention has been assailed by the petitioner.
The grounds on which the impugned order (Annexure P.2) was passed are that the petitioner has connections with the terrorists. He along with his wife''s brother Jasbir Singh and one Satish Kumar looted a 12 Bore DBBL gun from Mahavir Gun House, Batala, on March 16, 1986 and handed over the gun of Dalbir Singh. The petitioner also prevailed upon the Jasbir Singh and some other persons to commit dacoitites and also to kill persons with a view to create terror in the area. While his associates, namely, Jasbir Singh, Tarsem Singh and Dalbir Singh were presented at Batala on May 21, 1986 to achieve his object, they were apprehended by the police. In this respect a case was registered against the petitioner under Section 25 of the Arms Act as well as sections 3 and 4 of the Terrorist and Disruptive Activities Act, 1985, at Police Station, Sadar Batala (F.I.R. No. 198 dated May 21, 1986). During the course of investigation it was found that out of fear no witness was coming forward to support the case against him. On account of these activities to District Magistrate, Gurdaspur, was satisfied that the petitioner should be detained under the National Security Act with a view to prevent him from acting in a manner prejudicial to the security of the state and maintenance of the public order.
To assail the validity of the petitioner''s'' detention, two contentions have been put forward on behalf of the detenu. Firstly that the detenu was already under detention in the case relating to the aforementioned First Information Report No. 198 dated May 21, 1986 and as such he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of the public order. Hence no order of detention under the National Security Act was called for. Secondly, that the detaining authority was not even aware that the detenu was already in detention. It shows that the impugned order suffers from the vice of nonapplication of mind.
No doubt the petitioner had already been apprehended on May 21, 1986 in the case pertaining to F.I.R.No. 198 dated May 21, 1986 and was under detention when the impugned order (Annexure P.1) was passed by the District Magistrate on May 28 1986, but on this ground alone the detention order in not vitiated. In Rameshwar Shaw v. District Magistrate, Burdwan & Anr., (1964) 4 S.C.R. 921, the Supreme Court held as under :
"As 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 detection of the said person after he is 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 for 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 has 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."
On the basis of these observations the Supreme Court in a later judgment in Biru Mahato v. The District Magistrate, Dhanbad, 1982 C.A.R.350 (SC), held that one can envisage a case where a preventive order may have to be made against a person already confined to jail or detained. The ratio of these judgment is that in given circumstances even if a person is under detention for a short period it may be feasible for the authority to consider his antecedents and decide whether his detention would be necessary after he is released from such detention and if the authority is bonafide satisfied that such detention is necessary he can make a valid order of detention some time before the person is likely to be released. Thus, the impugned detention order could not be quashed simple because the petitioner was already detained in the case of F.I.R. No. 198; provided the detaining authority was subjectively satisfied from the attending circumstances that despite the detention it was necessary to further detain him under the National Security Act.
Now adverting to the second contention put forward on behalf of the petitioner is indeed must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. It was so held in the case of Biru Mahato (supra). The Supreme Court ruled :
"One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it must be present on the mind of the detaining authority that keeping in view the facts that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But as stated by this Court it will depend on the facts and circumstances of each case."
It is contended by the learned petitioner''s counsel that in the present case the impugned order does not disclose that the detaining authority was ware of the fact that the petitioner was already under detention and it can, therefore, be deduced that the impugned order suffers from the defect of non application of mind. This contention is not without merit. There is no mention of the petitioner''s detention either in the detention order (Annexure P1) or in the grounds of detention (Annexure P.2). The only fact mentioned in the grounds (Annexure P.2) is that on May 21, 1986 the associates of the petitioner, namely, Jasbir Singh, Tarsem Singh and Dalbir Singh were apprehended at Batala and F.I.R. No. 198 was registered against the petitioner. The fact that the petitioner was also subsequently arrested and detained in this case is conspicuously missing. It was simply mentioned in the grounds of detention that during the investigation of that case nobody was prepared to give evidence against the petitioner out of fear. In the detention order it was stated that despite the prosecution in the aforesaid case it will not be sufficient to prevent the petitioner for acting in a manner prejudicial to the security of the State and maintenance of public order and it was, therefore, necessary to pass the detention order against him under the National Security Act. Manifestly the detention order does not show on the face of it that the detaining authority was aware of the petitioner''s detention when he passed he impugned order.
Hence in the light of the dictum of the Supreme Court in the case of Biru Mahato (Supra) the impugned order of detention suffers form the defect of nonapplication of mind and it, therefore, cannot be sustained. Consequently the detention order (Annexure P.1) and the confirmatory order (Annexure P.3) are quashed.