S.D.BAJAJ, J. - (1.) ONE Sher Singh Doomchhari was arrested by Chandigarh Police in 107/151 Criminal Procedure Code proceedings on 14th May, 1988 and lodged in Burail Jail at Chandigarh. Detention order based on grounds of detention Annexure PA was served on the detenu inside Barail fail on the 28th May, 1988. In the grounds of detention, the detenu is alleged to have made five provocative speeches inciting communal hatred between Hindus and Sikhs and inciting Sikhs to armed violence against Government established by law both in the State and at the Centre during the period 13th December, 1987 to 31st January, 1988. Harminder Kaur wife of the detenu has filed Criminal Writ Petition No 1024 of 1989 assailing the detention of her husband 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 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 alongwith his other party leaders and workers was arrested on 14-5-1988 by the Chandigarh Police under Section 107/151 Cr. P C. on apprehension of breach of peace. It is also correct that the detenu was detained on 28-5-1988 when he was lodged in Burail Jail in connection with the proceedings under Section 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 the person arrested could not be opposed and the release of the detenu in the said case was imminent because he could be released as soon as he furnished the interim security and the Govt could not oppose his release and if released, the detenu was likely to indulge in activities prejudicial to the security of the State and 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. The detenu was duly supplied with a copy of the detention order and ground of detention Annexure P. 2. The averment of the petitioner that the detention order was not supplied to the petitioner is untenable because detention order was only to be supplied to the detenu, which was as already submitted duly supplied. The detenu acknowledged the receipt of the detention order, which is annexed as Annexure R-1".
(2.) I have heard Shri H. S. Mattewal, Sr. Advocate, with Mr. Sukhbir Singh, Advocate, for the petitioner, Shri S. S. Saron, A.A.G. Punjab for the respondept State and have carefully gone through the Annexures brought on record by both the parties. Accusations against the detenu, obtaining in Annexure P. 1 are that during the period from 13th December, 1987 to 3 Ist January, 1988 he repeatedly made five 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 at the Centre and making the offer of help to the terrorists. No case was at all registered against the detenu for making such speeches. In similar situation adjudicating upon the validity of detention order in Fazal Ghosi v. State of U.P. and others, 1987(2) RCR(Crl.) 321 (SC) : 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 it appears to us that 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 be could form the opinion that the detenus would act in future in a manner prejudicial to the maintenance of public order. It is pointed oat 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 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 detenus 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. The District Magistrate, it is true, has stated that the detention of the detenus was effected 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."
(3.) VIEWING from the other perspective of not registering case against the detenu in respect of offensive public speeches, repeatedly made by him as aforesaid during the period 13th December, 1987 to 31st January, 1988 or not prosecuting him on that account, their Lordships of the Supreme Court observed in Sadhu Roy v. The State of West Bengal, 1975 Criminal Appeal Reports 134 as follows "There are two social implications of dropping prosecutions and resorting to substantive detention which deserve to be remembered. Where a grievous crime against the community has been committed, the culprit must be subjected to consign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment than stringent sentences and there is no reason why a dangerous criminal should get away with it by enjoying an unfree but unpaid holiday. Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time. That is negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the cage." ;