GURDIAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER Gurdial Singh was detained pursuant to an order of detention 28.12.1987 issued by the District Magistrate, Amritsar, who is respondent No. 2 herein, under section 3(2) of the National Security Act, 1980. The detention is based on secret information with regard to active extremism, harbouring of extremists and indulging in activities which interfere with the efforts of Government in coping with the terrorist and disruptive activities prevention to the security of the State and maintenance of public order. On the basis of such secret information case F.I.R. No. 152 dated 11.12.1987 was registered and petitioner was actually arrested on 11.12.1987 i.e. more than a fortnight before the passing of detention order.

(2.) THE detention order is annexure P-1 and its correct reproduction is not disputed. As is obvious, from what has been stated above, petitioner was already in custody when the detention order was made and that fact has also been incorporated in the detention order itself. When admittedly petitioner was already in jail it was not possible for him to indulge in active extremism, harbouring of extremists or in activities prejudicial to the security of the State and maintenance of public order. Conspicuously enough, it is not mentioned in the detention order what steps, if any, were taken by the petitioner for getting himself released so as to conclude that there was likelihood of his being set at liberty. Again, unless he indulges in any such activity after any such release, it cannot be presumed that his involvement in a criminal case and detention as a result thereof did not have any effect whatsoever and he was bound to have repeated his earlier activities even if the same are taken to be prejudicial. In the given premises, the power of preventive detention for obvious reasons should not have been exercised.

(3.) DETENTION under the National Security Act admittedly is of a preventive nature and the same cannot be exercised as a punitive measure. Petitioner was in custody for quite some time before the making of the order and when possibility of his release has not been supported by any cogent reasons or set of circumstances, in the detention order, question of his indulging in objectionable activities in future in the absence of detention order could not arise The power of directing preventive detention given to the appropriate authority must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with the preventive detention and should be used with great deal of circumspection There must be awareness of 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 immediate possibility of his being released, power of preventive detention cannot and should not be exercised. It was held in Binod Singh v. District Magistrate, Dhanbad, Bihar and others, AIR 1986 Supreme Court 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 dictum as well, it cannot be said to be a fit case for preventive detention and the petitioner is entitled to succeed on said short ground.