# STATE OF PUNJAB v. SUKHPAL SINGH

- **Citation:** [1989] Supp. 1 S.C.R. 420
- **Court:** Supreme Court of India
- **Decided:** 1989-10-06
- **Case number:** Criminal Writ Petition ij No. 1393 of 1988
- **Bench:** Murari Mohon Dutt, K.N. Saikia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-v-sukhpal-singh-10477
- **Pages:** 25

## Headnote

c
National Security Act, 1980-Sections 3(2), 9, 10, 11 and 12Detention Order-Advisory Board-Not a judicial body-Charged
with responsibility of advising Executive Government-Decisions when
binding on Government.
Sri Sukhjinder Singh has been under detention pursuant to the
order dated 28.5.1988 of the Government of Punja)>; Department of
Home Affairs and' Justice passed in exercise of the powers conferred by
sub-section (2) of Section 3 of the National Security Act, 1980 hereinafter referred to as "the Act" read with section 14A as inserted by
D
National Security (Amemdment) Act, 1987 with a view to preventing
him 'from mdulging .in activities prejudicial to the secnrity of the State and
maintenance of public order and interference with the efforts of the
Govt. in coping wi!h the terrorists and disruptive activities.
The detenu's son Sukhpal Singh filed Criminal Writ Petition
ij No. 1393 of 1988 in the High Court praying inter-alia for a writ of
Habeas Corpus, quashing the detention order, production of the detenu
in the Court on the date of hearing, directing the authorities to arrange
for the presence of the detenu before the Advisory Board at Chandigarh
and also to make arrangements & pay for the expenses required to be
incurred for arranging the presence of detenu's witnes~s to be proF duced before the Board at Agartala and also his relatives and counsel so
as to effectively assist him in regard to the presenting of his case before
the Board.
The High Court by order order 27.9.88 dismissed the Writ Petition but ordered that the petitioner·would approach the Advisory Board
G at Chandigarh with the requesi for allowi~g the detenu to produce
evidence before it at Agartala and in case his prayer was granted by the
Board, the expenses for taking those witnesses to Agartala would be
borne by the respondent-state.
·
Sukhpal Singh later moved Criminal Writ Petition No. 2365 of
H 1988 in the High Court of Punjab & Haryana for quashing the detention
420
STATE OF PUNJAB v. SUKHPAL SINGH
421
order contending inter-alia that the order of detention was passed on
28.5.88 in a cursory and routine manne< without application of mind,
much less with subjective satisfaction and there was an inordinate delay
of two months in consideration of detenu's representation and that the
detention was confirmed without affording the detenu any chance of
' appearing and producing witnesses before the Advisory Board in terms
of orders of the High Court dated 27.9.88 made in Crl. Writ Petition
No. 1393 of 1988.
The High Court upheld the above contention of the petitioner and
accordingly quashed the order of detention and ordered the detenu to
be set at liberty Corwith unless required in any other case.
Aggrieved hy this order the State has come up before this Court
by way· of special leave. The Court while dismissing the appeal and
directing the detenu to be set at liberty forthwith as ordered by the High
Court.
HELD: A clear distinction has to be drawn between preventive
detention in which anticipatory and precauiionary- action is taken to
prevent the recurrence of apprehended events, and punitive detention
under which the action is taken after the event has already hal'Jlened. It
' is true that the ordinary criminal process of trial is not to be circumvented and short circuited by apparently handy and easier resort to
11reventive 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. i426C-E]
It is true that the Advisory Board is not a judicial body. It is
charged with the responsibility of advising the Executive Government.
But when it advises in favour of the detenu, namely that there was no
sufficient cause for detention, it would be binding upon the Govt. under
section 12(2) of the Act to release the detenu f

## Text

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A
STATE OF PUNJAB
v.
SUKHPAL SINGH
OCTOBER 6, 1989
B
[MURARI MOHON DUTT AND K.N. SAIKIA, JJ.]
c
National Security Act, 1980-Sections 3(2), 9, 10, 11 and 12Detention Order-Advisory Board-Not a judicial body-Charged
with responsibility of advising Executive Government-Decisions when
binding on Government.
Sri Sukhjinder Singh has been under detention pursuant to the
order dated 28.5.1988 of the Government of Punja)>; Department of
Home Affairs and' Justice passed in exercise of the powers conferred by
sub-section (2) of Section 3 of the National Security Act, 1980 hereinafter referred to as "the Act" read with section 14A as inserted by
D
National Security (Amemdment) Act, 1987 with a view to preventing
him 'from mdulging .in activities prejudicial to the secnrity of the State and
maintenance of public order and interference with the efforts of the
Govt. in coping wi!h the terrorists and disruptive activities.
The detenu's son Sukhpal Singh filed Criminal Writ Petition
ij No. 1393 of 1988 in the High Court praying inter-alia for a writ of
Habeas Corpus, quashing the detention order, production of the detenu
in the Court on the date of hearing, directing the authorities to arrange
for the presence of the detenu before the Advisory Board at Chandigarh
and also to make arrangements & pay for the expenses required to be
incurred for arranging the presence of detenu's witnes~s to be proF duced before the Board at Agartala and also his relatives and counsel so
as to effectively assist him in regard to the presenting of his case before
the Board.
The High Court by order order 27.9.88 dismissed the Writ Petition but ordered that the petitioner·would approach the Advisory Board
G at Chandigarh with the requesi for allowi~g the detenu to produce
evidence before it at Agartala and in case his prayer was granted by the
Board, the expenses for taking those witnesses to Agartala would be
borne by the respondent-state.
·
Sukhpal Singh later moved Criminal Writ Petition No. 2365 of
H 1988 in the High Court of Punjab & Haryana for quashing the detention
420
STATE OF PUNJAB v. SUKHPAL SINGH
421
order contending inter-alia that the order of detention was passed on
28.5.88 in a cursory and routine manne< without application of mind,
much less with subjective satisfaction and there was an inordinate delay
of two months in consideration of detenu's representation and that the
detention was confirmed without affording the detenu any chance of
' appearing and producing witnesses before the Advisory Board in terms
of orders of the High Court dated 27.9.88 made in Crl. Writ Petition
No. 1393 of 1988.
The High Court upheld the above contention of the petitioner and
accordingly quashed the order of detention and ordered the detenu to
be set at liberty Corwith unless required in any other case.
Aggrieved hy this order the State has come up before this Court
by way· of special leave. The Court while dismissing the appeal and
directing the detenu to be set at liberty forthwith as ordered by the High
Court.
HELD: A clear distinction has to be drawn between preventive
detention in which anticipatory and precauiionary- action is taken to
prevent the recurrence of apprehended events, and punitive detention
under which the action is taken after the event has already hal'Jlened. It
' is true that the ordinary criminal process of trial is not to be circumvented and short circuited by apparently handy and easier resort to
11reventive 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. i426C-E]
It is true that the Advisory Board is not a judicial body. It is
charged with the responsibility of advising the Executive Government.
But when it advises in favour of the detenu, namely that there was no
sufficient cause for detention, it would be binding upon the Govt. under
section 12(2) of the Act to release the detenu forthwith. [439F]
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Expressing inability to appear once could not have been treated as
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the detenu's not desiring to be heard under section 2(2) of the Act. ln
fact he desired to be heard and to produce his witnesses. [439Gl
The protection of personal liberty is largely through insistence on
observance of the mandatory procedure. In cases of preventive detention observance of procedure has been the bastion against wanton
H
422
SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
A
assaults ou personal liberty over the years. [440E]
One of the foremost and fundamental right guaranteed in the
Constitution is personal liberty and one cannot be deprived of it except
by !he procedure prescribed by law. Libertas Inestimabilis res est.
Liberty is an inestimable thing above price. Libertus omnibus rebus
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favourabilier est. Liberty is more favoured than all things (anything). It
would be ironic if, in the name of social security, we would sanction the
subversion of this liberty. [440F-G]
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The increasing need for ensuring public safety and security in the
State of Punjab and the Union Territory of Chandigarh has been
reflected in the recent successive amendments of the National Security
Act. [442F]
As·a result of these amendments applicable to the State of Punjab
and the Union Territory of Chandigarh it is found on the one hand
addition to the grounds of detention and on the other, extension of
period during which a person could be detained without obtaining the
opinion of the Advisory Board. There is, however, no amendment as to
the safeguards provided under Article 22 and ss. 9, 10 and 11 of the Act.
Indeed, there could be no such amendment. [444C-D]
Lex uno ore omnes al/oguitur. Law addresses all with one mouth
or voiee. Quotaiens dubia interpretatio libertatis est secundum libertatem
respondentum erit-Whenever there is a doubt between liberty and
bondage, the decision must be in favour ofliberty. [444E)
Fazal Ghosi v. State of U.P. & Ors., AIR 1987 SC 1877: 1987 (3)
SCR 471; Rex v. Halliday, Ex parte Zadig, [1917] AC 260; Ujagar
Singh v. State of Punjab, AIR 1952 SC 350: 1952 SCR 756; Haradhan
Saha v. The State of West Bengal & Ors., [1975] 3 SCC 198; Hem/ata
Kantilal Shah v. State of Maharashtra & Ors.·, AIR 1982 SC 8: 1982 (1)
SCR 1028; Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC
1143: [1982] 3 SCR 707; Ciani Bakshish Singh v. Governmentof India
& Ors., AIR 1973 SC 2667_: [1974] I SCR 662; Raj Kumar Singh v. State
of Bihar & Ors., AIR 1986 SC 2173; [1986] 4 SCC 407; Jayanarayan
Sukut v. State of West Bengal, [1970] 3 SCR 225; Frances Coralie
Mullin v. W.C. Khambra & Ors., [1980] 2 SCC 275; StateofOrissa &
Anr. v. Manila/ Singhania & Anr., AIR 1976 SC 456: [1976] 2 SCC 808;
A. K. Gopa!an v. The State of Madras, AIR 1950 SC 27: [1950] SCR 88;
John Martin v. State of West Bengal, [1975] 3 SCC 836; Khudiram Das
v. The State of West Bengal & Ors., [1975] 2 SCC 81; Saleh Mohammed .
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.]
423
v. Union of India & Ors., tl980] 4 SCC 428; Kam/a Kanya/al KhushaA
lani v. State of Maharashtra & Anr., [1981] I SCC 748; Rattan Singh v.
State of Punjab & Ors., [1981] 4 sec 481; Youssuf Abbas v. Union of
India & Ors., [1982] 2 SCC 380; Asha Keshavrao Bhosale v. Union o}
India & Anr., [1985] 4 SCC 361; Aslam Ahmed Zahire Ahmed Shaik v.
Union of India & Ors., [1989] 3 SCC 277; T.A. Abdul Rahman v. State
of Kera/a & Ors., J.T. 1989 3 SC 444; Rama Dhondu Borade v. Shri
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V.K. Saraf, Commissioner of Police & Ors., [1989] I Scale Vol. I
22; Dr. R.K. Bhardwaj v. The State of Delhi & Ors., [19531 SCR 708;
D.S. Roy v. State of West Bengal, [1972] 2 SCR787; P.D. Deorah v.
The District Magistrate, Kamrup & Ors., [1974] 2 SCR 12; NP. Umrao
v. B.B. Gujral & Ors., [1979] 2 SCR 315 at p. 321; V.C. Jawantraj
Jain v. Shri Pradhan & Ors., [1979] 3 SCR 1007; Bal Chand Choraria
v. 'Union of India & Ors., [1978] 2 SCR 401; Smt. Kavita v. The State of C
Maharashtra & Ors., [1981] 2 Ci-1. L.J. 1262: AIR 1981SC1641; A.K.
Roy v. Union of India, [1982] Vol. 88 Crl. L.J. 340; and State of Rajasthan
v. Shamsher Singh, [1985] Suppl. I SCR 83, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
D
No. 624 of 1989.
From the Judgment and Order dated 31.7.1989 of the Punjab
and Haryana High Court in Crl. W .A. No. 2365 of 1988.
K. Parasaran, Attorney General and R.S. Suri for the
E
Appellant..
Kapil Sibal, H.S. Randhwa and Ms. Kamini Jaiswal for the
Respondents.
The Judgment of the Court was delivered by
K.N. SAIKIA, J. Special leave granted. Heard learned counsel
for the parties.
F
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 G
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
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424
SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
sub-section (2) of section 3 of the National Security Act 1980 (No. 65
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
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
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 witnesH 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
A
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the representation addressed to the detaining authority had neither
been considered nor disposed of; and that detention was confirmed C
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 represenD
tation 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 assailE
ing 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
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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
G
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 proH
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426
, SUPREME COURT REPORTS
[1989) Supp. 1 S.C.R.
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
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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
H 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 A
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
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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
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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
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order and the grounds of detention is therefore necessary. It is, as was
held in Ujagar Singh v. State of Punjab, 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
E
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
F
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
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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.
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SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
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
C 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 a manner 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
D from the conclusion that the terrorists and disruptive activities distrupt
·public peace and tranquillity and affect the freedom of the public from
danger to 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 of Maharashtra 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
F 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
G only to see whether the formality as en joined 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 ·
H the authority as pointed out m Ashol Kumar v. 'Delhi Administration
STATE OF PUNJAB v. SUKHPAL SINGH (SAIKIA, J.]
429
& Ors., 'AIR 1982 SC 1143: [1982] 3 SCR 707. Those who are respons1A
ble 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
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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 C
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
D
of his speeches stated in the grounds of detention there was sufficient
justification for the inference that he would repeat such speeches if bot '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 &
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Ors., _AIR 1973 SC 2667: [1974] 1 SCR 662, Smt. Hemlata v. State of
Maharashtra & Ors., (Supra) and Raj Kumar Singh v. State of Bihar &
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 G
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 H
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SUPREME COURT REPORTS
[ 1989] Supp. 1 S.C.R.
A
Detention Act in order to disable him to repeat such offences. The
detaining authority is not the sole judge of what national security or
public order .requires. But neither is the court the sole judge of the
position. When power is given to an authority to act on certain facts
and if that authority acts on relevant facts and arrives at a decision
which cannot be described as either irrational or unreasonable, in the
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sense that no person instructed in law could have reasonably taken
that view, then the order is not bad and the Court cannot substitute its
decision or opinion in place of the decision of the authority concerned
on the necessity of passing the order."
Following Hemlata (supra) it could be said that in this case of
C prosecution it may not be possible to bring home the offender to book
·as witnesses may not come forward to depose against him out of fear,
or it may not be possible to collect all necessary evidence without
unreasonable delay and expenditure to prove the guilt. of the offender
beyond reasonable doubt.
: D
Considering the relevant facts and circumstances including the
time and'place, the contents of the detention order and the allegations
in the grounds of detention in this case, we are of the view that nonregistration of any criminal case could not be said to have shown
non-application of mind or absence of subjective satisfaction.on the
part of the detaining authority.
Assailing the finding as to delay in disposing of the detenu's
representation, the learned Attorney General submits that on 1.9.1988
the detenu filed representation against his detention addressed to the
President of India through the Home Secretary, Government of
Punjab and the Superintendent of District Jail, Agartala (Tripura).
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The State Government was not aware of pendency of any such representation with it. On 13.9.1988 the Central Government issued a
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teleprinter message whkh was duly received on 14.9.1988 in which the
Central Government wanted to know the date on which the grounds of
detention were supplied to the detenu and also sought parawise comments on the representation of the detenu. However, the Central
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Government did not send any copy of the representation to the State
Government. Even so, it directed the police, vide letter dated
14.9.1988, to supply the required information to the Central Govern-'
ment. It was intimated to the Central Government that parawise
comments on .the representation could not be offered as copy of the
representation was not available with the State of Punjab. The Central
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Government vide teleprinter message dated 6.10.1988 which was
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.I
431
received on 10.10.1988 intimated that the photostat copy of the
representation had been sent along with the post copy of the teleprinter message. The representation was duly received on 19.10.1988
by the State of Punjab and it was examined at various levels on
19.10.1988 (20.10.1988 was a holiday), 21.10.1988 (22.10.1988 and
23.10.1988 were holidays), 24.10.1988 (25.10.1988 was again a holiday), 26.10.1988, 27.10.1988 and 28.10.1988. The representation was
duly put up before the competent authority who was pleased to reject
the representation after due deliberation and consideration on
28.·10.1988. Thus, according to the learned Attorney General, the
State of Punjab from the time of receiving the representation and till
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the time of its final disposal did not take more than 9 days, obviously
excluding the aforesaid 14 holidays. According to him this was a C
miraculous job done in disposing of the detenu's representation and
the intimation of the rejection was conveyed to the Superintendent of
Jail, Agartala vide letter dated 31.10.1988, who informed the detenu
on 8.11.1988. Thus the detenu's representation dated 1.9.1988 was
disposed of by the State Government on 28.10.1988 and the detenu
was informed only on 8.11.1988 i.e. after more than two months. It D
was pointed out by Mr. R.S. Suri, learned counsel for the appellant,
that excepting the photostat copy received from the CentrJl Government no _separate representation was at all received by the State
Government of Punjab. The Central Government also rejected the
representation before them after due consideration on December 21,
1988 and duly informed the detenu.
E
Mr. Kapil Sibal, the learned counsel for the detenu states that
two copies, one meant for the Central Governmeni and the other
meant for the State Government, were sent by the detenu on the same
date. The learned Attorney General contends that the delay was
caused by the representation having been addressed to the President
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of India, wherefore, the copy went to the Central Government. Mr.
Sibal, however, assets that the detention order-.:.having said; ''whereas
the President of India is satisfied", the detenu was required under law
to address the representation to the President of Irldia and in view of
the. fact that it was routed through the Superintendent of the District
Jai\, Agartala (Tripura) and the Home Secretary, Government of
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Punjab, there was no reason why it should not have been delivered to
the State Government of Punjab. The learned Attorney General
points out that the detention order itself having said that if the detenu
wished to make such representation, he should address it to the State
Government through the Superintendent of Jail as soon as possible
and the grounds of detention having a!So similarly stated that the
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SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
detenu should address the representation to the State. Government
through the Superintendent of Jail, the delay caused up till the receipt
of the photostat copy from the Central Government must be attributed
to the detenu himself and the State Government could not be blamed
and the detention order could not be.said to have been vitiated by any
latches, negligence or delay in disposing of the representation, under
the facts and circumstances stated above.
The State of Punjab having bi:en under the President's rule at the
relevant time and
0
the detention order itself having stated that it was
the satisfaction of the President in passing the detention order Mr.
Sibal points out that it could not be said to have been a fatal mistake in
the representation to have been addressed to the President of India,
Rashtrapati Bhawan, New Delhi and the same being routed through
the Superintendent of the District Jail, Agartala (TRIPURA), and the
Home Secretary of the State of Punjab, there was no reason why the
same should not have been received by the State Government of Punjab. However it appears that the representation said to have been
meant for the State Government was not received by the State Government at all. The detenu cannot be said to have deliberately caused
the dday. Though we feel that in view of the clear instructions in the
grounds of detention that he should address the representation to the
State Government through the Superintendent of the Jail where he
was detained should have been followed. May be this was due to the
fact that Punjab was under President's rule at the relevant time but
Rashtrapati Bhawan, New Delhi was not the proper destination of the
representation to the State Government.
It is a settled law that in cases of preventive detention expeditious action is required on the part of the authorities in disposing of the
detenu's representation. In Jayanarayan Sukul v. State of West Bengal,
[ 1970] 3 SCR 225 it was laid down that the consideration of the
representation of the detenu by the appropriate authority was entirely
independent of any action by the Advisory Board including the consideration of the representation by the Advisory Board. There should
not be any delay in the matter of consideration. It is true that no hard
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and fast rule can be laid down as to the measure of time taken by the
appropriate authority for consideration but it has to be remembered
that the Government has to be vigilant in the governance of the citizens. A citizen's right imposes correlative duty on the State. In Frances
Coralie Mullin v. W.C. Khambra and Ors., [1980] 2 SCC 275, it was
reiterated that the detaining authority must consider the representaH tion as soon as possible, and this preferably, must be before the
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.]
433
representation is forwarded to the Advisory Board before the Advisory Board makes its report and the consideration by the detaining
authority of the representation must be entirely independent of the
hearing by the Board or its report, expedition being essential at every
stage. The time imperative cannot be absolute and the Court's observations are not to be so understood, and there has to be lee-way
depending on the facts and circumstances of the case. However, no
allowance can be made for lethargic indifference or needless procrastination but allowance has to be made for necessary consultation where
legal intricacies and factual ramifications are involved. The burden of
explaining the departure from the time imperative is always on the
detaining authority. The emphasis is on the constitutional right of a
detenu to have his representation considered as expeditiously as possible and it will depend upon the facts and circumstances of each case
whether or not the appropriate Government has disposed of the case
as expeditiously as possible. In F. C. Mullin's case the representation
of the detenu made on December 22, 1979 was not communicated to
the Advisory Board as it ought to have been, when the Board met on
January 4, 1980 and the detaining authority awaited the hearing before
the Advisory Board and took a decision thereafter. Under the facts
and circumstances of that case where the detenu requested for copies
of statements and documents collection of which took time, it was held
that if there appeared to be any delay, it was not deemed due to any
want of care but because the representation required a thorough
examination in consultation with investigators of facts and advisors on
law and as such though the Administrator considered the representation of the detenu after hearing by the Board, the Administrator was
not entirely influenced by the hearing before the Board and the application for habeas corpus was, therefore, dismissed. In State of Orissa
and Anr. v. Manila/ Singhania and Anr., AIR 1976 SC 456: [1976] 2
sec 808, it was held that the representation made by the detenu may
be considered by the State Government as soon as possible i.e., with
reasonable despatch and if that is not done, it would have the effect of
vitiating the order of detention, but it is neither possible nor desirable
to 'lay down any rigid period of time uniformly applicable in all cases
within which the representation of the detenu must be considered by
the State Government. The Court would have to consider judicially in
each case on the available material whether the gap between the
receipt of the representation and its consideration by the State
Government is so unreasonably long and the explanation for the delay
offered by the State Government was unsatisfactory as to render the
detention order thereafter illegal.
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SUPREME COURT REPORTS
[1989] Supp. 1 S.C.R.
Article 21(5) of the Constitution enjoins that when any person is
detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of making
a representation against the order. Since A. K. Gopalan v. The State of
Madras, AIR 1950 SC 27: [1950] SCR 88, there has been a catena of
decisions of this Court taking the view that the representation of the
detenu must be considered promptly by the State Government. In
John Martin v. State of West Bengal, [1975] 3 SCC 836 it was observed.
that Article 22(5) does not say which is the authority to which the·
representation shall be made or which authority shall consider it. Bys.
8( 1) of the Act the authority making the order is required to communicate to the detenu his grounds of detention and to afford him the
earliest opportunity of making a representation against the order to
the appropriate Government. In Khudiram Das v. The State of West
Bengal & Ors., [1975] 2 SCC 81 it was explained that "the constitutional Imperatives enacted in Article 22(5) are two fold; ( 1) the detaining authority must, as soon as may be, that is, as soon as practicable ·
after the detenion, communicate to the detenu the grounds on which
the order of detention has been made and (2) the detaining authority
must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum
safeguards 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." In State of Orissa & Anr. v.