TMI Blog1983 (12) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... he National Security Act, 1980. The respondent was arrested in pursuance of the order of detention on the night between October 3 and 4, 1983. He was first lodged in the Central Jail, Patiala and from there he was taken to Ambala, Baroda and Fathegarh (U.P.). He filed a Writ Petition (No.463 of 1983) in the High Court to challenge his transfer and detention in a place far away from Ambala. He withdrew that petition on an assurance by the Government that he will be sent back to Ambala, which the Government did on October 28. The grounds of detention were served on the respondent on October 6, 1983. Those grounds show that the petitioner was detained on the basis of two speeches allegedly made by him: one on July 8, 1983 at Nihang Chhowani, Baba Bakala, District Amritsar and the other on September 20, 1983 at Gurdwara Manji Sahib, Amertsar. The grounds furnished to the petitioner read thus: (1) That you in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8-7-1983 at a place known as 'Nihang Chhowani' at Baba Bakala, District Amritsar, delivered a provocative speech to a Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what steps should be taken. The beloved army of Guru (Nihangs) have protected our dress and scriptures. It is true that some of them do commit mistakes also. They should be punished. We should see that we should kill as many police man as they kill ours, otherwise they will slowly finish us. The new Inspector-General of Police Mr. Bhinder, has stated that there are no extremist in Darbar Sahib. Further said that Congress wants to finish self respect among you. The Morcha, which is launched by Akali Dal, is to save the Sikh appearance. The awards have been given to police, have they won any war? Such a big attack upon the Nihangs was on a pre-planned programme. I say if they have killed our two men, then you should kill four. If they come to kill me like this, then I will die after killing them. I will never go back. Further said that if we get a judicial enquiry made, it becomes meaningless. Nothing comes out of them. Now the judicial power has been given to Executive Officers. They may kill any-body and they complete the enquiry and fill the file. One of the grounds on which the order of detention was challenged in the High Court was that the State Government had fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven date, at a given place, at Baba Bakala and before a Sikh gathering numbering 2000/2200. Detaining authority: (Taking back the report from the detenu's hand and subjecting it to a close scrutiny, says somewhat wryly): Yes, you are right. The vital data which finds a mention in ground No. 1 is missing from the supporting materail. (Regaining quickly his repose, the detaining authority continues): Never mind if the given vital facts are missing from the supporting material. The supporting material at least reveals that you did utter the objectionable words somewhere, sometime, on some date and before some persons. Detenu: Sir, but that was not the speech on which you were going to act. You were going to take action against me on the basis of the speech mentioned in Ground No. 1. Detaining authority: Very well. (So saying, the detaining authority orders the detention of the detenu on two grounds by adding one more ground on the basis of another speech. The detaining authority serves the order of detention upon the detenu, containing two grounds of detention. Simultaneously, the detaining authority supplies the supporting material to the detenu. ) We must mention in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars were supplied to him along with the grounds, that it was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together and that the grounds contained the necessary facts with full details. The dialogue should have ended there and the curtain rung down. Indeed, the dialogue, though carefully improvised by the learned Judge, assumes what is to be decided, namely, whether the particulars furnished to the detenu suffer from the infirmity alleged. Nevertheless, we will examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the C.I.D. report of the speech alleged to have been made by him at the Shaheedi Conference, did not contain the material particulars which formed an important constituent of the grounds served upon him. His grievance is that the C.I.D. report of his speech does not mention that: (1) the Conference was held on July 8, 1983; (2) it was held at Nihang Chhowani; (3) it was held between the hours of 11. A.M. and 4.45 P.M. (4) it was a Shaheedi Conference ; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shmir (4). The interpretation of Article 22, consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22 (5) of the Constitution . (1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. In Khudiram Das v. The State of West Bengal,(2) it was observed that these two safeguards are the barest minimum which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security . The question which we have to consider in the light of these decisions is whether sufficient particulars of the first ground of detention were furnished to the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... somewhat casual and unimaginative approach to his task. We asked the learned Attorney General to produce before us the original version of the C.I.D. report of which an extract was supplied to the respondent by way of particulars. The original version contains almost every one of the material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, the place, the time and the occasion of the meeting. It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an argument. This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities. Preventive detention is a necessary evil but essentially an evil. Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution. Nothing less. We will utter the of given warning yet once more in the hope that the voice of reason will be heard. Shri Hardev Singh contended, in the alternative, that the order of detention suffers from a to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources of information or the exact words of the information which formed the foundation of the order of detention could not be complained of. In Her Jas Dev Singh v. State of Punjab,(2) it was held that the conclusions drawn from the available facts constitute 'the grounds ' and that the ground must be supplied to the detenu. The Court observed that the detenu is not entitled to know the evidence nor the source of the information: What must be furnished to him are the grounds of detention and the particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority. In Vakil Singh v. State of Jammu and Kashmir, (3) it was held that since the basic facts, as distinguished from factual details were incorporated in the material which was supplied to the detenu, nothing more was required to be intimated to him in order to enable him to make an effective representation. These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence corroborating that the report of the C.I.D. is true and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of Punjab, and not by the District Magistrate, Ludhiana, who had passed the order of detention. We are not prepared to dismiss this submission as of no relevance or importance. In matters of a routine nature, if indeed there are any matters of a routine nature in the field of detention, a counter-affidavit may be sworn by a person who derives his knowledge from the record of the case. However, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant fats before the Court which the Court is legitimately entitled to know. In Shaik Hanif v. State of West Bengal, the counter- affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Home), who verified the correctness of the averments in his affidavit on the basis of the facts contained in the official records. The District Magistrate; who passed the order of detention, did not file his affidavit and the explanation which he gave for not doing so was found to be unsatisfactory. Following an earlier judgment in Naranjan Singh v. State of Madhya Pradesh, it was held by this Court that, in answer to a Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention. Finally, Shri Hardev Singh has contended that the respondent was unable to give proper instructions to his counsel when the matter was heard by the Advisory Board. Counsel says that the respondent was transferred from place to place and ultimately. he was produced before the Advisory Board an hour or so before the commencement of proceedings before the Board. That left no time for him to instruct his counsel. We do not see any substance in this grievance. The respondent was represented by an advocate before the Advisory Board. The learned advocate argued the case of the respondent along with the cases of two other detenus. It does not appear that any grievance was made by him that he was not able to obtain instructions from the respondent so as to be able to represent his case effectively before the Advisory Board. For these reasons, we allow the appeal and set aside the judgment of the High Court. As desired by counsel for the respondent, we remand the matter to the High Court for disposal of the remaining contentions raised by the respondent in his Writ Petition. We would like to take this opportunity to point out that serious difficulties arise on account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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