KARAM SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER Karam Singh was detained pursuant to as order dated 8.4.1987 issued by the District Magistrate, Ludhiana who is respondent No. 2 herein under Section 3(2) of the National Security Act, 1980. The detention is based on various incidents ranging from 10.7.1986 to 23.12.1986 with regard to which different first information reports were registered under various provisions of law as mentioned in the grounds on which the detention order was based as reproduced in para No. 3 of the petition. Petitioner admittedly was already confined in District Jail, Nabha in connection with said first information reports and the latest of them all was recorded about five and half months before the making of the detention order.

(2.) ADMITTEDLY the order of detention has been correctly reproduced in para No. 2 of the petition and it discloses that the petitioner is likely to indulge in activities prejudicial to the maintenance of public order and security of State. It is however, not disputed that the petitioner was already in custody on account of the above referred to cases at the time of the making of the order which fact has been incorporated in the detention order itself, making it clear that he was confined at that time in District Jail, Nabha. When admittedly petitioner was already in Jail he could not have possibly indulged in any such activities. It was only mentioned in a vague and general manner that the petitioner was likely to indulge in a manner prejudicial to the maintenance of public order in the event of his release from jail on bail or otherwise, which, for obvious reasons, is of no consequence.

(3.) DETENTION under National Security Act, admittedly, is a preventive action and the same cannot be exercised as a punitive measure. It has been mentioned in the written statement filed on behalf of the District Magistrate, Ludhiana that the detention order is preventive in nature. Petitioner was in custody for quite some time before the making of the order and when possibility of his release could not be effectively made out in the detention order; question of indulging in such activities in future, in the absence of detention order could not arise. The power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of 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 is badly lacking in this case. In the absence of the awareness of the facts necessitating preventive custody the order of preventive detention cannot be justified. If a man is in custody and there is no imminent possibility of his being released, power of preventive detention should not be exercised. It was held in Ramesh Yadav v. District Magistrate Etah and others, AIR 1985 SC 315, where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was release on bail he would again carry on his criminal activities in the area, the same was not proper. Similarly it was held in Binod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR 1986 SC 2090, where the detention order under Section 3(2) of the National Security Act was served upon the detenu when he was already in jail in respect of a murder case and there was no indication that this factor or the question that the said 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 of detention, the continued detention of the detenu under the Act would not be justified. By the force of the said pronouncements of the Supreme Court as well, it cannot be said to be a fit case to resort to preventive detention and the petitioner is entitled to succeed on said short ground.