KEHAR SINGH CHANDA SINGH Vs. THE STATE OF PEPSU
HIGH COURT OF PUNJAB AND HARYANA
Kehar Singh Chanda Singh
The State Of Pepsu
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Passey, J. -
(1.) THIS is an appln. under Section 491, Code of Criminal Procedure, by Kehar Singh of village Noor Pur who is at present lodged in Sub -Jail, Kapurthala urging that he should be set at liberty as he is being illegally & improperly detained. He was arrested on 13 -7 -2006 under Section 3, Pepsu Public Safety Ordinance VII  of 2006 & was being kept in the said Sub -Jail, & had not yet been released when the said Ordinance was superseded by the Preventive Detention Act IV  of 1950 passed by the Indian -Parliament and a fresh order of detention was passed against him by the Pepsu Govt. on 28 -2 -1960. The detaining authority did not communicate to him the reasons for which the order of his detention bad been made till 11 -4 -1950, & on that date the ground supplied only stated that "you are an active believer in the cult of violence & were inciting disaffection amongst the classes of community." No order of the Govt. dated 11 -4 -1950 containing the ground of keeping him in custody was furnished to the detenu & what was done was that his signatures were obtained on the back of the order & it was taken back. After four months of his detention & after two months of the communication to him of the ground on which he was being held up and after about a month of the present appln. under Section 491, Code of Criminal Procedure, the Govt. submitted to this Ct. for communication to the detenu supplementary grounds justifying the order of his detention.
(2.) IT is urged by Mr. Nehra that on account of the vagueness & indefiniteness of the ground on which Kehar Singh's arrest & detention were ordered, it was not possible for him to make any representation to the Govt. & that inordinate delay in the communication of the ground of detention also rendered the custody illegal. The learned Counsel has further vehemently stressed that as there was extraordinary delay in supplying the ground of his detention to the detenu in the first instance & that supplied on 11 -4 -1950 was hopelessly vague, this Ct. should not take into consideration the supplementary grounds submitted on 8 -7 -1950 stating the alleged activities of Kehar Singh. The learned Assistant Advocate -General has frankly conceded that the ground supplied to the detenu on 11 -4 -1950 was not only belated but vague which must have failed to give him an idea of the reasons for continuing to keep him behind bars but he argues that that lacuna does not vitiate the order of detention & that the communication of the supplementary grounds submitted on 8 -7 -1950 should rectify the defect that had been caused by the non specification of the details of the reasons for the detention of Kehar Singh in the order dated 11 -4 -1950. The Preventive Detention Act IV  of 1950 confers unlimited & unrestricted powers upon the Govt. & other officers mentioned in Section 3, subject to specified conditions & circumstances, to detain a person by an executive order without Bending him up for trial & deprive him of his liberty which under the Constitution of India it is his birthright to enjoy, on a mere suspicion or hearsay information & inadmissible evidence. As these powers are as dangerous to the freedom of the subject, as they are vast, the provisions of the Act must be construed strictly, Now Section 7 of the Act requires that when a person is detained in pursuance of detention order the authority making the order shall as soon as may be communicate to him the grounds on which the order has been made & shall afford him the earliest opportunity of making a representation against the order. The section apparently provides a safeguard against indiscriminate, mistaken, capricious, arbitrary or unjustified orders of detention & enjoins that the person detained must be informed of the reasons justifying the order under which he is detained & that further he should be given the earliest opportunity of representing against the illegality or groundlessness of the order. The words "as soon as may be" & "earliest opportunity of making a representation" under Section 7 are correlative & stress upon the detaining authority the necessity of providing the detenu as soon as may reasonably be practicable with the grounds on which his detention has been ordered, so that he may avail of the earliest opportunity to apply to the Govt. for revocation or withdrawal of the order if it is un -justified, improper or illegal. The words "as soon as may be" are not equivalent to "as & when convenient to" or "as & when the detaining authority thinks proper", but they require that the order should be conveyed to the person affected as early as in the circumstances of the case could reasonably be expected to be done. This view is supported by the words 'earliest opportunity' that follow & both combinedly read leave no doubt that the communication of the grounds to the detenu has to be made as early as possible regard being had to all attendant or likely exigencies. If the time that elapses between the arrest & actual detention of a person & the communication to him of the grounds on which the order has been made against him is unduly large or unreasonable, violence, of the provisions of Section 7 which are mandatory would be evident. In this view of the law, I have no hesitation in holding on the facts of the present case that the inordinate delay in communicating the grounds of his detention to the detenu & giving him an opportunity of representing to the Govt. vitiates the order & renders the detention of Kehar Singh improper & illegal.
(3.) THE next point that falls for determination is as to whether the supplementary grounds, which are more specific, submitted on 8 -7 -1950 could cure the original defect created by the failure to communicate the grounds worth the name till that date & to this also my answer would be in the negative. It may be pointed out that the detaining authority has given no satisfactory explanation for holding up the detailed grounds that have now been framed to supplement the former & since the order of detention had become void from the time when no opportunity, what to say of earliest opportunity to make a representation to the person detained was given, a subsequent opportunity after so long a time cannot operate to have a retrospective validating effect. A similar case Ch. Indar Singh v. The State Cr. Misc. No. 209 of 2006 was decided by the learned Chief Justice on 27 -4 -1950. In that case supplementary grounds were communicated to the detenu during the course of the pendency of his appln. under Section 491, Code of Criminal Procedure & the learned Chief Justice refused to take them into consideration, the reason being the communication had taken place during the pendency of the case & it was a belated effort on the part of the Govt. to undo the effect of the contravention of the imperative provisions of law. In Muzaffarudin v. The Crown, A.I.R. 1950 Sind 7 :, 51 Cr.L.J. 860 it was held that even if the original order of detention was perfectly in order when it was made, yet when an opportunity to make a representation was not given to the detained person, his detention had become illegal & once it had become illegal a belated opportunity did not revalidate the authority of his detention. A similar view was also taken by Bind Basni Prasad J. in S.G. Sardesai v. Provincial Govt. : A.I.R. 1949 All. 395 : 50 Cr.L.J. 637 & it was held that the additional grounds supplied to the detenu after he had made the appln. under Section 491, Code of Criminal Procedure should be ignored in considering the legality of the detention, when the delay is not supported by valid excuse.;
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