BALJIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) DETENTION order (annexure P-3) for detention of petitioner Baljit Singh was made by District Magistrate, Amritsar, under Section 3(2) of the National Security Act, on 17-9-1987. Balijit Singh was already in Judicial custody since 21-7-87 and that detention order was served upon him on 22-9-1987. His detention under National Security Act thus started with effect from 22-9-1987. The aforesaid order of the District Magistrate, Amritsar, was, however, revoked on 22-3-1988 vide revocation order of the same date, annexure P 4. Second detention order, annexure P-1, was made simultaneously on the same date i.e. 22-3-1988. The detention is based on various incidents detailed in grounds of detention, annexure P-2, ranging from 17.7.1987 to 21-7-1987. Petitioner was actually arrested for commission of the crimes which were made basis of detention on 21-7-1987. The earlier detention order admittedly was also based on the same grounds. Through this habeas corpus petition, petitioner Baljit Singh has sought quashing of detention order annexure P-1 and all other such orders which were passed subsequently in this behalf.

(2.) SECTION 14-A of the National Security Act, 1990, which was inserted through amendment Act No. 27 of 1987, permits detention of any person in respect of whom an order of detention has been made under the Act at any time before the 8th of June, 1988, without obtaining the opinion of the Advisory Board for a period not exceeding six months. It necessarily means that Government is under an obligation to complete the entire procedure and confirm detention order of a person within six months of his detention. In the present case, the detention order was confirmed only on 1-6-1988. Beyond the period of six months, detention becomes bad in law and gets vitiated. As is clear from. Clauses (4) and (7) of Article 22, Constitution looks upon preventive detention with disfavor and has permitted the same only for a limited period without the intervention of an independent body with person of Judicial qualification of a high order on it. Lapse of the limited period without confirmation of the detention order, therefore, makes the detention illegal. In the present case, preventive detention of Baljit Singh having started on 22-9-1987, entire procedural formalities were required to be gone into by 21-3-1988 on which date the maximum period of six months expired and nothing done thereafter could legalise his detention.

(3.) EVEN otherwise, petitioner being already in custody for the last about 2 months could not have possibly indulged in any such activities so as to justify preventive detention. It is mentioned in the grounds Of detention that order of detention of the petitioner was passed with a view to preventing him from indulging in such prejudicial activities in future but it is neither made clear in the said grounds, annexure P-2, or detention order, annexure P-1, in what manner he was likely to indulge, in such activities in the near future, when at the time of passing of the detention order he was admittedly in custody. It is stated in bald manner in the impugned order that petitioner was taking steps to get himself released from custody and there was every likelihood of his being released, but the steps taken by him have not been spelt out. Petitioner has stated in the petition that there was no move on his part to get released on bail at the time of the making of the detention order and that assertion of his has not been refuted. There is no material on the record to show that the detenu would repeat mis-conduct or do anything else which would be prejudicial to the maintenance of the public order, and for that reason as well, orders of detention are liable to be set aside, because power of directing preventive detention is a preventive measure and not a punitive one. It was held in Fazal Ghosi v. State of U.P. and others etc. 1987(2) Recent Criminal Reports 321 : AIR 1987 Supreme Court 1877, "The District Magistrate it is true, has stated that the detention of the detenu was affected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to anymaterial in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all". In the absence of any such material, detention orders in respect of all the four detenus were quashed by the apex Court. In Smt. Shashi Aggarwal v. State of U.P. and others 1988(1) Recent Criminal Reports 579 : AIR 1988 Supreme Court 596, it was held that the possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. Rather there must be credible information or cogent reasons apparent on the record that the detenu would act prejudicially to the interest of public order. Relying on the said rulings, in the absence of any such material which might have been taken to be sufficient at the time of passing of the detention order to indicate the possibility of release of the petitioner from custody, who was involved in four different cases, in the near future, and further to show that he would repeat mis-conduct or do anything else which could be prejudicial to the maintenance of public order, the orders of detention are liable to be set aside.