STATE OF PUNJAB v. SUKHPAL SINGH

Citation: [1989] SUPP. 1 S.C.R. 420

Court: Supreme Court of India

Bench: M.M. DUTT, K.N. SAIKIA

Case summary

;er exercised reasonably in anticipation and may or may not relate to an offence. We have, however, to remember that individual liberty is allowed to be curtailed by an anticipatory action only in interest of what is enumerated in the statute.

Judgment text

The Judgment of the Court was delivered by K. N. SAIKIA, J. Special leave granted. Heard learned counsel for the parties. The State's appeal is from the Judgment of the High Court of Punjab and Haryana dated 31. 7. 1989 passed in Criminal Writ Petit. ion No. 2365 of 1988 quashing the detention order of Sukhjinder Singh, father of the respondent, under the National Security Act. Sri Sukhjinder Singh has been under detention pursuant to the Government of Pm1jab, Department of Home Affairs and Justice's Order dated 28. 5. 1988, passed in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act 1980 (No.

65 A of 1980), hereinafter referred to as 'the Act'; read with section 14A as inserted by National Security (Amendment) Act, 1987, with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with efforts of Government in coping with the terrorist with disruptive activities. He was furnished with the grounds of detention contained in a 9 paragraphs thereof and saying that on account of the said activities, the President of India was satisfied that he should be detained. As no arguments have been based on the grounds themselves, we have not extracted them.

The detenu was also informed that he had a right to make representation in writing against the detention order and if he wished to make any such representation, he should address it to the 0 State Government through the Superintendent of Jail, and that as soon as possible, his case would be submitted to the Advisory Board within the stipulated period from the date of his detention and if he wished to make a representation to the Central Government, he should address · it to the Secretary, Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi through the Superintendent of Jail where he was detained. It further stated that he had also a right to appear before the Advisory Board for representing his case, and if he wished to do so, he should inform the State Government through the Superintendent of Jail in which he was detained. It appears that the detenu's son Sukhpal Singh filed Criminal Writ Petition No.

1393 of 1988 in the High Court of Punjab and Haryana praying, inter alia, for a writ of habeas corpus; quashing of the detention order; for production of the detenu in court on the date of hearing; for directing the respondents to arrange the presence of the II' . detenu at Chandigarh before the Advisory Board; and for directing the respondents to make arrangements and pay for the expenses required to be incurred for arranging the presence of detenu's witnesses to be prciduced before the Board at Agartala and also of the relatives and the counsel of the detenu so as to effectively assist him in regard to presenting his case before the Advisory Board. The High Court by order dated 27. 9.

1988 dismissed the Criminal Writ Petition, but ordered that "the petitioner would approach the Advisory Board stationed at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board, the expenses for taking those witnes- H ses to Agartala would be borne by the respondent/State. " STAIB OF PUNJAB ,, SUKHPAL SINGH (SAIKIA, J. ] 425 Sukhpal Singh later moved Criminal Writ Petition No. 2365 of 1988 in the. f{iglj Court of Punjab and Haryana for quashing the detention order contending, inter alia, that the order of detention was passed on 28. 5.

1988 in a cursory and routine manner wi\hout application of mind, much less with subjective satisfaction inasmuch as no case at all was registered against the detenu for his 'alleged public utterences as stated in the grounds of detention and, therefore, the detention order was liable to be quashed; that consideration of the detenu's representation filed with the State Government on September 1, 1988 was inordinately delayed for two months till October 31, 1988 and even thereafter the State took ~ long days to convey its rejection and the representation addressed to the detaining authority had neither been considered nor disposed of; and that detention was confirmed without affording the detenu any chance of appearing and producing witnesses before the Advisory Board in terms of the High Court's order dated 27. 9. 1988 in Criminal Writ Petition No. 1393 of 1988.

The High Court upheld the above contentions of the petitioner, namely, lack of subjective satisfaction, delay in considering representation and the denial of opportunity to appear before the Advisory Board; and accordingly quashed the order of detention and ordered the detenu to be set at liberty forthwith unless required in connection with any other case. The learned Attorney General of India for the appellant assailing the findings of the High Court submits that the High Court's finding that there was no subjective satisfaction of the detaining authority simply because no criminal case was registered against the detenu for his public speeches is erroneous both in law and facts.

The allegations were that during the period from November 19, 1987 to May 11, 1987 the detenu made 9 provocative speeches as stated in the grounds of detention inciting communal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against the Government established by Jaw· both in the State and in the Centre and making the offer of monetary and other assistance to the terrorists. When the . detention order was passed the detenu was already detained in Burail Jail and the detention order itself said that he was already in custody and was taking steps to get himself released and there was every likelihood of his being released from custody; and that in the event of his release he was likely to resume such prejudicial acitivites in future and there was thus compelling necessity to pass the order.

He submits that the subjective satisfaction of the detaining authority was based on pertinent materials and it had in mind the question whether the pro- secution of the detenu would be possible and sufficient. Mr. Kapil Sibal, learned counsel for the respondents supporting the finding of the High Court reiterates that the fact that. no criminal case was registered during the period of giving the alleged speeches clearly showed that there was non-application of mind preceding the detention order. We find force in the submission of the learned Attorney General. The detention order itself said that the detenu was already in custody and was likely to be released wherefore it was necessary to order for his preventive detention. It is not denied that the above relevant niaterials were placed before the detaining authority. The act nowhere provides that the detaining authority cannot resort to preventive detention without first criminally prosecuting the detenu.

A clear distinction has to be drawn between preventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened. It is true that the ordinary criminal process of trial is not to be circumvented and shortcircuited by apparently handy and easier resort to preventive detention. But the possibility of launching a criminal prosecution cannot be said to be an absolute bar to an order of preventive detention. Nor would it be correct to say that if such possibility is not present in the mind of the detaining authority the order of detention would necessarily be bad.

The failure of the detaining authority to consider the desirability of launching a criminal prosecution before ordering preventive detention may in the circumstances of a case lead to the conclusion that the detaining authority had not applied its mind to the important question as to whether it was necessary to make an order of preventive detention but such is not the case here. In this regard one has to bear in mind the relevant facts and cir. cumstances of a case including the time and place concerned. In this view we find support from the decision in Fazal Ghosi v. " State of U. P. & Ors.

, AIR 1987 SC 1877: [1987) 3 SCR 471, wherein it was pointed out that the Act provided for preventive detention which was intended where it was apprehended that the persons might act prejudicially to one or more considerations specified in the statute, and the preventive detention was not intended as a punitiv~ measure for curtailment of liberty by way of punishment for the offence already committed. Section 3 read with Section 14A of the Act clearly indicat~d that the power of detention thereunder could be exercised only with a view to preventing a person from acting in a manner which might prejudice any of the situations set forth in the Section. To appy what was said in Rex v. Halliday, Ex parte Zadig, 1917 AC 260, one of the most olwious. means of taking precautions against dangers such as are enumerated is to STAIE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.

] 427 impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to commit what is enumerated in s. 3 of the Act. No crime is charged. The qeustion is wheter a particular person is disposed to commit the prejudicial acts. The duty of deciding this question is thrown upon the State. The justification is suspicion or reasonable probability and not criminal charge which can only be warranted by legal evidence. It is true' that in a case in which the liberty of such person is concerned we . cannot go beyond natural construction of the statute. It is the duty of this Court to see that a law depriving the person of his liberty without the safeguards available even to a person charged with crime is strictly complied with. We have, however, to remember that individual liberty is allowed to be curtailed by an anticipatory action only in interest of what is enumerated in the statute.

In actual practice the grounds supplied operate as an objective test for determining the question wheter a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. A conjoined reading of the detention order and the grounds of detention is therefore necessary. It is, as was held in Ujagar Singh v. State ofPunjab, AIR [1952) SC 350: [1952) SCR 756, largely from prior events showing tendencies or inclinations of a man that inference can be drawn whether he is likely in future to act in a prejudicial manner. But such conduct should be reasonably proximate and should have a rational connection with the conclusion that the detention of person is necessary. The question of relation of the activities to the detention order must be carefully considered. Though the possibility of prosecution being launched is not an irrelevant consideration, failure to consider such possibility would not vitiate the detention order.

In Haradhan Saha v. The State of West Bengal & Ors. , [1975) 3 SCC 198 the Court did not lay down that possibility of a prosecution being launched was an irrelevant consideration, not to be borne in mind by detaining authority but it laid down that the mere circumstance that a detenu was liable to be prosecuted would not by itself be a bar to the making of an order of preventive detention. It did not follow therefore that failure to consider the posslfiiiity of criminal prosecution being launc. hed could ever lead to the conclusion that a detaining authority never applied its mind and the order of detention was therefore bad. Is it correct to say that if such possibility was not . present in the mind of the detaining authority, the order of the detention is necessarily bad? Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no fault can be found with it.

What is to be seen is whether the detaining authority has applied its mind or not to the question whether 1t was necessary to make preventive detention. ln the instant case there is evidence of application of mind. The proximity between the date of commission of an offence and of detention order cannot also be said to be absent in this case. As we have already seen the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary po,. ;er exercised reasonably in anticipation and may or may not relate to an offence. It cannot be considered to be a parallel proceeding. The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention.

It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future ' and thus act in amanner prejudicial to the maintenance of public order etc. shall not be based on adequate materials. Public safety ordinarily means security of the public or their freedom from danger. Public order also . implied public peace and tranquillity. There is no escape from the conclusion that the terrorists and disruptive activities distrupt ·public peace and tranquillity and affect the freedom of the public from dangerto life and property. Disruption means the act of bursting and tearing as under. - Disruptive means producing or resulting from ,or attending disruption. Therrorism means the act of terrorising; unlawful acts of violence committed in an organised attempt to over-throw a f. Government or like purposes.

Terrorist means one who adopts or supports the policy of terrorism. The terrorist and disruptive activities are naturally distruptive of public peace, tranquiility and development. In Hemlata Kantilal Shah v. State ofMaharashtra and Ors. , AIR 1982 SC 8: [1982] 1 SCR 1028, it was held that the prosecution or the absence of it is not an absolute bar to an order of preventive detention bui the authority is to satisfy the court that it had in mind the question of possibility- of criminal prosecution while forming the suhjective • satisfaction by the detaining authority. It may be based on inference from the past conduct and antecedent history of the detenu. The High Comt unqer Ap. 226 and Supreme Court under Art. 32 or 136 do not sit in appeal from the order of preventive detentfon. But the Court is only to see whether the formality as enjoined by Art.

22(5) had been complied with by the detaining authority, and if so done, the Court carinot examine the materials before it and find that the detaini9g authority should not have been satisfied on the materials before it and_ detain the detenu. In other words, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of · the authority as pointed out m Ashol Kumar v. 'Delhi Administration & Ors. , 'AIR 1982 SC 1143: [1982] 3 SCR 707. Those who are respons1ble for the n:i_tjonal security or for the maintenance. of public order must be the juog~_of what the national security or public order requires. Preventive detention is devised to afford protect. ion to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. The .. justification for such detention is suspicion or reasonable. probability and not criminal conviction . which can only be warranted by legal evidence.

Thus, any prevent. ive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but ·are taken by way of prosecution' to prevent mischief to the State. There is no reason why executive ca'! not take . recourse to its powers of preventive detention in those ca8es where thi; executive is genuinely satisfied that no prosecution can pbssibly succeed against the detenu because he had influen. ce over witnesses and against him no one is prepared to dep0se. · However, pusillanimity on the part of the executive has to be deprecated and pusillanimous ordets avoided. It is submitted that-ifi the instance case, there. were sufficient materials to show that the detenu would act in the future to the prejudice of the maintenance of public order, security of the State and ,tne ·Government's effort to curb terrorism.

From the nature and contents of his speeches stated in the grounds of detention there was sufficient justification for the inference that he would repeat such speeches ifbot 'E preventively detained. Again when grievous crime again~! the cii>mmunity was committed it would surely be subject to the p~nal law and stringent sentences, but at the same time it could be considered unsafe ·to allow him the opportunities to repeat prejudicial acts during jthe period the penal process was likely to take. The learned Attorney General refers us to Giani Bakshish Singh v. Government;of India & Ors. , _AIR 1973 SC 2667: [1974] 1 SCR 662, Smt. Hemlata v. State of Maharashtra & Ors. , (Supra) and Raj Kumar Singh v. State ofBihar & • Ors. , AIR 1986 SC 2173: [1986] 4 sec 407, submitting that the possibility of criminal prosecution was no bar to order any prevent.

ive detention and that the court should not substitute its decision or opinion in place of decision of the authority concerned on the;question of necessity of preventive detention. "Possibility of a prosecution or the absence of it is not absolute bar to· an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such Jaws, then there will be no bar for the State to detain him under a Preventive