S.D.BAJAJ,J - (1.) VALIDITY of detention order Annexure P-1 dated 22.9.1988 based on grounds of detention Annexure P-2 has been assailed by detenu-petitioner Manjit Singh son of Harbhajan Singh on the grounds that the petitioner being already in detention with effect from 3.7.1988 there was absolutely no justification with the Detaining Authority to clamp the order of detention upon him 2-1/2 months thereafter, that there was an inordinate and unexplained delay of two weeks from 27.10.1988 to 11.11.1988 in the disposal of the representation filed by the detenu which vitiated the detention in terms of Article 22(5) of the Constitution of India and that the police report forming the basis of the grounds of detention Annexure P-2 was never supplied to the petitioner.
(2.) IN replies, separately filed by the State Government of Punjab and the District Magistrate, Amritsar, it was asserted that preventive jurisdiction vested in the Detaining Authority was exercised for compelling reasons set out in the detention order itself with full knowledge of the fact of detenu-petitioner being already in punitive custody with effect from 3.7.1988, that the representation filed by the petitioner was disposed of promptly and with due expedition in accordance with the dictum of Article 22(5) of the Constitution of India and that copies of all documents considered by the Detaining Authority, while making the order of detention were duly supplied to the petitioner; who later filed a detailed representation in which it was not stated by him as now alleged that he was in any way prevented from filing an effective representation on this score. Hence, the writ merits dismissal. I have heard Shri H.S. Mattewal, Senior advocate, with Shri Sukhbir Singh, Advocate for the petitioner; Shri S.S. Saron, Assistant Advocate General, Punjab for the respondents; and have carefully gone through the facts and circumstances obtaining in the present case. All the three pleas raised by Shri H.S. Mattewal, Senior Advocate against the validity of the impugned order of detention, would be discussed hereinafter ad seriatim. (i) Petitioner being already in punitive detention :- It has been urged by the learned Counsel for the petitioner, with reference to the observations made in Binod Singh v. District Magistrate, Dhanbad, Bihar AIR 1986 SC 2090; Karnail Singh v. State of Punjab, 1988(2) Recent Criminal Reports 497 and Usmanbhai Dawoodhbhai Memon v. State of Gujarat, 1988(1) Recent Criminal Reports 540 : AIR 1988 Supreme Court 922 that accused-petitioner being in custody already, with effect from 3rd July, 1988 and there being no imminent possibility of his being released, the power of preventive detention could not be exercised by the Detaining Authority to order his detention with effect from 22.9.1988. Relevant observations of the Supreme Court read :- "If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody." Complete answer to the arguments as also to the observations made in the authorities cited in support of it is forthcoming from the observations made by the Supreme Court in Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130 and Vijay Kumar v. Union of India, 1988(1) Recent Criminal Reports 602, which reads :- "The first question is as to the legality of an order of detention of the person who was already in custody. The Law Report contains several decisions on this point and they furnish an instructive lesson for both sides. In all the cases, there is however, one uniform principle stated and reiterated. It is this : The Detaining Authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his prevention detention is found necessary. But where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardise the security of the State then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention." "Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. In the circumstances the pendency of a criminal prosecution is no bar to an order of preventive detention, nor is an order of preventive detention a bar to prosecution. It is for the Detaining Authority to have the subjective satisfaction whether in such a case there are sufficient materials to place the person under preventive detention in order to prevent him from acting in a manner prejudicial to public order or the like in future."
(3.) IN the present case, compelling reasons for doing so have been set out by the Detaining Authority in the order of detention Annexure P-1 which read :- "That this order has been passed by me being conscious of the fact that Sh. Manjit Singh is already in judicial custody in the cases registered against him. Manjit Singh is taking steps to get himself released from the custody and there is every likelihood of his being set at liberty, and in that event he is likely to indulge in prejudicial activities in view of his prima facie propensity towards such activities and thus there is compelling necessity to pass the detention order against him though he is in judicial custody at present." (ii) Unexplained delay of two weeks in the disposal of the representation from 27.10.1988 to 11.11.1988 :- Regarding the inordinate and unexplained delay of two weeks in the disposal of the representation, in para 3 of the reply filed by the State, it has been asserted :- "In reply to this para, it is submitted that the petitioner submitted his representation to the Supdt. Central Jail, Amritsar, on 26.10.1988 and not on 7.10.1988. This representation was received in the office of the answering respondent on 26.10.1988 though the Supdt. Central Jail, Amritsar. Thereafter, comments of the Detaining Authority on the representation were called for vide TPM dated 27.10.1988. The District Magistrate who is the Detaining Authority sent his parawise comments vide his office letter dated 11.11.1988 after making necessary enquiries and verifying the facts through the police authorities. In the meantime, 12th, 13th and 14th November, 1988 were holidays. Thereafter, the representation was dealt with at various levels on 15/11, 16/11 and 17/11 and put up before the competent authority who rejected the representation on 18.11.1988 after due consideration. Since 19th and 20th November were holidays, intimation regarding the rejection of the representation was conveyed to the Supdt. Central Jail, Amritsar, vide letter dated 22.11.1988 with the direction to inform the detenu. Thus, it is clear that the representation filed by the petitioner was disposal of promptly and expeditiously and in accordance with the provisions of Article 22(5) of the Constitution of India." ;