KULBIR CHAND Vs. DIST MAGISTRATE AMRITSAR

JUDGEMENT

(1.) 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 (1986 Chand Cri C (HC) 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similarly detained along with the petitioner as a result of the same activity or the incident attributed to them had been revoked by the State Government in the light of the opinion of the Advisory Board, and therefore, his dentention too could not be upheld.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 Cri Writ Petn. No. 962/1986 (Major Singh v. State of Punjab) decided on October 30, 1986 (reported in (1987) 2 Chand LR (Cri) 678), which judgment in turn, was based on the ratio of the Supreme Court judgment in Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, AIR 1983 SC 541, wherein it was ruled :

(2.) 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 Md. Shakeel Wahid Ahmed (1983 Cri LJ 967) (SC) (supra) 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, that no specific plea to the effect that while affirming the detention of the petitioner the material leading to the revocation of the detentions 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. I 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 v. District Magistrate, Beed, AIR 1987 SC 1977 wherein it has been held :

(3.) 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 u/Ss. 436, 452, 506, 323, 148, 149 I.P.C., read with Ss. 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 passed 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 v. District Magistrate, Dhanbad (1987) 1 Chand LR (Cri) 660 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.