KEHAR SINGH CHANDA SINGH Vs. THE STATE OF PEPSU

JUDGEMENT

(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VII [7] of 2006 & was being kept in the said Sub -Jail, & had not yet been released when the said Ordinance was superseded by the Preventive Detention Act IV [4] of 1950 passed by the Indian -Parliament and a fresh order of detention was passed against him by the Pepsu Govt.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.

(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.