S.D.BAJAJ, J. - (1.) DETENTION order Annexure P I based on grounds of detention obtaining in Annexure P. 2 was clamped on the detenu named Shri Kuldip Singh Wadala on 28th May, 1988 inside Burail Jail, Chandigarh wherein the detenu was being kept confined already with effect from 14th May, 1988 in preventive jurisdiction under sections 107/151 of the Criminal Procedure Code. Gurdip Singh son of the detenu has assailed the validity of the detention order Annexure P.1in Criminal Writ Petition No 249 of 1988 on the grounds that the detenu being already in jail could not indulge in prejudicial activities thereafter and as such the detention order was passed without any application of mind by the detaining authority, that no case was at all registered against the detenu for prejudicial activities attributed to him in the grounds of detention Annexure P. 2 and that the order of detention Annexure P. 1 was passed by the detaining authority in a cursory routine manner without any application of mind; much less its subjective satisfaction and as such is required to be quashed. In reply it was urged : "The contents of this para are admitted to the extent that the detenu along with his other party leaders and workers was arrested on 14-5-88 by the Chandigarh Police u.s. 151 Cr.P.C. In proceedings under Section 107 Cr.P.C. on account apprehension of breach of peace it is also correct that the order Annexure P 1 was served on the detenu, when he as lodged in Burail Jail in connection with the proceedings is 107 151 Cr.P.C. In reply to the contention of the petitioner that the detenu did not make efforts to get himself released, it is submitted that in security proceedings the release of a person arrested cannot be opposed and if released the detenu was likely to indulge in activities prejudicial to the security of the State and the maintenance of public order. Therefore, there was a compelling necessity to pass the detention order against the detenu. in view of the imminent likelihood of his being released and indulging in prejudicial activities." The contents of this sub-para are wrong and misconceived. As already submitted, the grounds of detention are clear, cogent and specific and there is no vagueness or any kind. The activities indulged in by the detenu, besides creating law and order problem were also prejudicial to the security of the State and maintenance of public order and interfered with the efforts of the Govt. in coping with terrorist and disruptive activities. So far as the registration of criminal cases on the basis of these activities is concerned, it is submitted that preventive detention under the National Security Act is different in nature and, concept from criminal prosecution. The jurisdiction of the two is not coextensive. An order of preventive detention can be made with or without prosecution and in anticipation of or after discharge or even acquittal, The pendency of prosecution is no bar to an order of preventive detention. Preventive detention and prosecution are not synonymous, The purposes are different, The authorities are different. The nature of the proceedings are different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference for the future course of probable conduct on the part of the detenu. In the present case the order of detention was passed against the detenu to prevent the commission in future of activities injurious to the maintenance of public order and the security of State, and also to prevent the detenu from interfering with the efforts of the Govt. in coping with terrorist and disruptive activities."
(2.) I have heard Shri. H.S. Mattewal, Sr. Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner, Shri H. S. Bedi, Additional Advocate General, Punjab, for the respondent State and have carefully gone through the Annexures brought on record by both the parties. Accusations against the detenu, obtaining in Annexure P 2, are that during the period from 4th January, 1988 to 4th May, 1988 he repeatedly made seven provocative speeches inciting communal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against Government established by law both in the State and the Centre and making the offer of monetary and other assistance to the terrorists. No case was at all registered against the detenu for making such speeches. In a similar situation adjudicating upon the validity of detention order in Fazal Ghosi v. State of U.P. and others, AIR 1987 Supreme Court 1877 their Lordships of the Supreme Court observed : "Learned counsel for the detenus challenges the detention orders on several grounds. In our opinion, it is not necessary to consider all the points raised because the cases can be disposed of on a short ground. The contention on behalf of the detenus is that there was no material before the District Magistrate on the basis of which he could form the opinion that the detenus would act in future in a manner prejudicial to the maintenance of public order. It is pointed out that the National Security Act provides for preventive detention, and preventive detention is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the statute. There is no doubt that preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed. Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the section. In the present case, we are unable to discover any material to show that the detenu would act in the future to the prejudice of the maintenance of public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the misconduct or do anything else which would be prejudicial to the maintenance of public order.
(3.) THE District Magistrate, it is true, has stated that the detention of the detenus 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 any material 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 circumstances, the detention orders in respect of the four detenus must be quashed.";