PETITIONER:
STATE OF PUNJAB
Vs.
RESPONDENT:
JAGDEV SINGH TALWANDI
DATE OF JUDGMENT16/12/1983
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
MADON, D.P.
THAKKAR, M.P. (J)
CITATION:
1984 AIR 444 1984 SCR (2) 50
1984 SCC (1) 596 1983 SCALE (2)942
CITATOR INFO :
F 1985 SC1082 (18)
D 1986 SC2173 (20)
ACT:
A. Constitution of India, 1950, Article 22 (5)
Preventive Detention-Duty of detaining Authority-Compliance
with strict terms of the Constitution is a must-National
Security Act (Act LXV of 1980) section 3.
B. Preventive Detention-National Security Act (Act LXV)
of 1980-Section 3 read with Article 22(5) of the
Constitution of India, 1950-Full details of the prejudicial
activities (dated, time and place) mentioned in the grounds
of detention, but not in the supporting particulars-Whether
non-mention in the “supporting particulars vitiate the
entire paoceedings”?
C. Preventive Detention-Evidence gathered need not be
furnished to the Detenu.
D. Preventive Detention matters-Counter-affidavits by
the detaining authority on receipt of notice of the writ,
not being furnished-Effect of non-furnishing-Constitution of
India, 1950 Article 22(5).
E. Practice & procedure-Pronouncing final order without
reasoned judgment and reserving the same in Preventive
Detention Cases-Practice deprecated Constitution of India
Article 226, 136 read with Civil Procedure Code sections
33,107 and Criminal Procedure Code Section 354, Difference
between High Court & Supreme Court Procedures, explained.
HEADNOTE:
The respondent challenged the order of his detention
passed by the District Magistrate, Ludhiana on October
3,1983 under section 3 (3) read with section 3 (2) of the
National Security Act, 1980, through Criminal Writ Petition
No. 516 of 1983. According to the petitioner respondent, the
grounds of detention served on him on Oct. 6, 1983 showing
that he was detained on the basis of two speeches made by
him on 8.7.1983 and 20.9.1983 as recorded by the Crime
Investigation Department of the Punjab Police contained
certain particulars, which were totally absent from the
supporting material and therefore no reasonable person could
have possible passed the detention order on the basis of
such material. The High Court accepted the contention and
made the rule absolute. Hence the appeal by the State after
obtaining special leave.
Allowing the appeal and remanding the matter to the
High Court of Punjab, the Court
^
HELD: 1:1. While passing orders of detaining great care
must be brought to bear on their task by the detaining
authorities. Preventive detention is a
51
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. [61 B-C]
1:2. In the instant case, the detaining authority
should not have adopted a somewhat casual and unimaginative
approach to his task. 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, 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 arguments. [61 A-B]
2. The contention of the respondent that he could not
make an effective representation in behalf of ground No.1
because of the inadequacy of data in the supporting
particulars supplied to him is incorrect. The inadequacies
from which the supplementary particulars furnished to the
respondent along with ground No.1 suffer, cannot affect that
position because, they do not introduce any obscurity in the
facts stated in that ground or detract from the substance of
the allegations mentioned in that ground. The first ground
of detention mentions that the detenu was right only
formally or technically. That is because, the C.I.D. Report
was supplied to him along with the grounds of detention with
the express stipulation that it formed “the base of the
grounds of detention.” The grounds mention every one of the
details which need have been mentioned. The C.I.D. report
was furnished to the detenu as forming the source of
information leading to the conclusion that he had made a
speech which necessitated his detention in the interests of
public order. In the circumstances, the grounds and the
material furnished to the detenu have to be read together as
if the material in the form of the C.I.D. report was a
continuation of the grounds of detention. [57 C-E, 60 F-H]
Dr. Ramakrishna Bhardwaj v. The State of Delhi, [1953]
SCR 708, Khudiram Das v. The State of West Bengal, [1975] 2
S.C.R. 832, @ 838 & 840; Mohammed Yusuf Rowther v. The State
of J & K, [1980] 1 SCR 258 @ 268, 269; State of Bombay v.
Atmaram, [1951] S.C.R. 157; Shibbanlal Saxena v. State of
Uttar Pradesh, [1954] SCR 418; Dwarkadas Bhatia v. State of
Jammu & Kashmir, [1956] S.C.R. 948; referred to.
3. 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 correct. His right is to receive every material
particular without which a full and effective representation
cannot be made. If the order of the detention refers to or
relies upon any document, statement or other material,
copies thereof have, of course, to be supplied to the
detenu. It is not the law that evidence gathered by the
detaining authority against the detenu must also be
furnished to him. [62 G-H; 63 A-B]
Beni Madhob Shaw v. The State of West Bengal, A.I.R.
1993 S.C. 2455 Har Jas Dev Singh v. State of Punjab, [1974]
1 SCR 281 @ 288; Vakil Vakil Singh v. State of Jammu &
Kashmir, A.I.R. 1974 2337 @, 2341; Icchu Devi Choraria v.
Union of India, [1981] 1 SCR 640 @ 650; referred to.
4. The failure to furnish the counter-affidavit of the
District Magistrate who had passed the order of detention,
was an impropriety though in most of the cases
52
it may not be of much consequence, especially if there was
no allegation of mala fides against the detaining authority.
There are no allegations of mala fides against the District
Magistrate and so, his failure to file a counter-affidavit
will not vitiate the order of detention. [65 A-B]
Shaik Hanif v. State of West Bengal, [1974]3 SCR 258;
Naranjan Singh v. State of Madhya Pradesh, A.I.R. 1972 S.C.
2215, referred to.
[The Court emphasised the importance of the detaining
authority filing his own affidavit in cases of the present
nature and observed that-"There are degrees of impropriety
and the line which divides grave impropriety from illegality
is too thin to draw and even more so to judge. Conceivably,
there can be cases in which such impropriety arising out of
the failure of the detaining authority in filing his own
affidavit may vitiate the order of detention.] [65 C-D]
5. It is desirable that the final order which the High
Court intends to pass should not be announced until a
reasoned judgment is ready for pronouncement. If the object
of passing such orders is to ensure speedy compliance with
them, that object is more often defeated by the aggrieved
party filing a special leave petition in this Court against
the order passed by the High Court. That places this Court
in a predicament because, without the benefit of the
reasoning of the High Court it is difficult for this Court
to allow the bare order to be implemented. The result
inevitably is that the operation of the order passed by the
High Court has to be stayed pending delivery of the reasoned
judgment. [65 H; 66 A-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
692 of 1983.
From the Judgment and order dated 29th November, 1983
of the Punjab & Haryana High Court at Chandigarh in Criminal
Writ Petition No. 516 of 1983.
K. Parasaran, Attorney Genl. of India, Bhagwant Singh,
Advocate General (Punjab), Gurmukh Singh, Addl Adv. Genl. of
Punjab, D.S. Brar, Asstt Adv. General, G.S. Mann. Deputy
Adv. General, R.D. Aggarwal, Govt. Advocate, Miss A.
Subhashini and S.K. Bagga for the Appellants.
Hardev Singh, G.S. Grewal, N.S Das Behl, R.S. Sodhi and
J.S. Sandhawalia, for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J. This is an appeal by special leave
against the judgment dated November, 29 1983 of a learned
Single Judge of the High Court of Punjab and Haryana in
Criminal Writ Petition No. 516 of 1983. That Writ Petition
was filed by the respondent. Shri Jagdev Singh Talwandi, to
challenge an order of detention passed by the District
Magistrate, Ludhiana, on October 3,
53
1983 whereby the respondent was detained under section 3 (3)
read with section 3 (2) of the 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 reference to
the incident dated 2-7-1983 of encounters between
Nihangs and police at Baba Bakala and Taran Taran
and stressed that in order to take revenge Sikhs
would kill their (Police) four persons in lieu of
the two Nihangs who had been killed in the said
encounters.
(2) That while addressing a conference convened by the
AISSF (All India Sikh Students Federation) on 20-
9-1983 at Gurdwara Manji Sahib at Amritsar and
attended by about 7000/8000 Sikh students, you
made a provocative speech wherein you said that
all efforts made for the success of the Akali
Morcha having failed, it was still time to
establish in Punjab a Government parallel to the
Central Government and that you are in a position
to form such a Government. You further exhorted
that the establishment of Khalsa Raaj was the only
solution to the problems. You also made a
suggestion that the Government
54
will not accept any demand unless it was compelled
by force to do so. This statement was also
published in the various newspapers. A case F.I.R.
No. 295 dated 27-9-1983 under section 124-A Indian
Penal Code, and section 13 of the Unlawful
Activities (Prevention) Act, 1967, was registered
at Police Station ‘E’ Division, Amritsar, which is
under investigation.”
The detaining authority stated in the last paragraph of
the detention order that the respondent was being supplied
the grounds of detention in Punjabi (Gurmukhi script)
together with an English translation thereof and the
“supporting material forming the base of the grounds of
detention”. The “supporting material”, by which is meant
particulars of the grounds of detention, was supplied to the
respondent along with the grounds. These particulars consist
of what is alleged to be a report of the speeches made by
the respondent, as recorded by the C.I.D. branch of the
Punjab Police. The particulars, of which an English
translation was produced in the High Court at Ex. A1, read
thus:
“While speaking he said that on July 2 by bringing
B.S.F., Punjab Police and other police the unarmed
Nihangs were fired at. There is no count as to how many
of them were killed, because no rollcall is taken of
the Sikhs; how many came and how many went.
Further said that in Punjab hundreds of innocent
Sikhs have been made the target of bullets. The
Government has seen that the Sikhs go away after paying
homage to the martyrs. Now we will have to decide 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
55
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 failed to discharge its obligation under Article 22 (5)
of the Constitution by denying to the respondent an
effective opportunity to make a representation to the
Advisory Board against the order of detention. On being
asked by the learned Judge “to be more specific”, counsel
for the respondent stated in the High Court that the State
Government had not supplied to the respondent the supporting
material on which Ground No. 1 of the grounds of detention
was based. Shri Hardev Singh, who appears on behalf of the
respondent, adopted that contention by clarifying that the
case of the respondent is that the relevant facts stated in
the 1st ground of detention are totally absent from the
supporting material supplied to him and, therefore, no
reasonable person could have possibly passed the detention
order on the basis of that material. The learned counsel
urged that the order of detention was bad either because the
detaining authority did not apply its mind to the material
before it or, in the alternative, because there was some
other material on the basis of which the detention order was
passed and that material was not supplied to the respondent.
For the purpose of focussing attention on the true
nature of the respondent’s contention and the prejudice said
to have been caused to him, the learned Judge of the High
Court resorted to an ingenious device. He coined a
conversation between the detaining authority and the detenu
on the subject of their rival contentions in this case. That
imaginary conversation may be reproduced, at least for the
merit of its novelty:
“(The detaining authority and the detenu come face
to face.)
Detaining authority: (After reading out Ground No.
1 to the detenu) : You had made that objectionable
speech.
56
Detenu: Sir, you seem to have been wrongly informed. I did
not deliver any speech, provocative or otherwise,
in a Shaheedi Conference at any such time, date or
place known as ‘Nihang Chhowni’ at Baba Bakal,
District Amritsar, before a Sikh gathering of
2000/2200, as read out by you from ground No. 1.
Detaining authority: (Being cock-sure of its facts, takes
out the C.I.D. report and puts it in the hands of
the detenu.): Go through this C.I.D. report
carefully, as ground No. 1 is based on that
report.
Detenu: Sir, this report does not refer to any speech
being made by me in a Shaheedi Conference at a
given time, on a given 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.”)
57
We must mention in order to put the record straight and
in fairness to the learned Judge, that he has narrated this
conversation in a manner which is slightly different in so
far as the form, but not the substance; is concerned. He has
narrated the conversation in a running form. We have
reproduced it like a dialogue in a play, without adding
anything of our own. Indeed, we have taken care not to make
any changes at all in the fictional conversation imagined by
the learned Judge because, the questions and answers which
suggested themselves to him are, in a sense, the heart of
the matter and, in any case, constitute the essence of his
judgment.
With respect to the learned Judge, the basic error of
his judgment lies in an easy, unexamined assumption which he
has made on a significant aspect of the matter. The detenu
reminded the detaining authority that the C.I.D. report did
not refer to any speech made by him “in a Shaheedi
Conference at a given time, on a given date, at a given
place at Baba Bakala and before a Sikh gathering numbering
2000/2200″. The detaining authority could have not possibly
replied to that question by saying merely that the detenu
was right. The detenu was right only formally or
technically. That is because, the C.I.D. report was supplied
to him along with the grounds of detention with the express
stipulation that it formed “the base of the grounds of
detention”. The grounds mention every one of the details
which need have been mentioned. The C.I.D. report was
furnished to the detenu as forming the source of information
leading to the conclusion that he had made a speech which
necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished
to the detenu have to be read together as is the material in
the form of the C.I.D. report was a continuation of the
grounds of detention.
The unqualified reply given by the detaining authority
to the detenu, as imagined by the learned Judge, betrays
considerable unfamiliarity with the true legal position of
the part on the detaining authority. Not only that, but it
shows that the detaining authority forgot that the
particulars and the grounds were expressed to be
interlinked, the former being the base of the latter. The
detaining authority should have explained to the detenu that
though the particulars supplied to him did not mention those
various details, the 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
58
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”; (5)
there was a gathering of 2000 to 2200 persons at the
Conference; and that, (6) the speech made by him referred to
an encounter at Baba Bakala and Tarn Taran.
Article 22 (5) of the Constitution, around which the
argument or the respondent revolves, reads thus:
“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.”
This Article has come up for consideration before this
Court in a large number of cases. One of the earliest
judgments of this Court on the interpretation of this
Article is reported in Dr. Ram krishna Bhardwaj v. The State
of Delhi,(1) in which Patanjali Sastri, C.J. observed that
under Article 22 (5) of the Constitution, the detenu has the
right to be furnished with particulars of the grounds of his
detention, “sufficient to enable him to make a
representation which, on being considered, may give relief
to him”.
Khudiram Das v. The State of West Bengal, 2 is a
judgment of a four Judge-Bench of this Court in a case which
arose under the Main-
59
tenance of Internal Security Act, 1971. One of us, Bhagwati,
J., who spoke for the Court, surveyed the decisions bearing
on the question of the obligation of the detaining authority
and explained the nature of that obligation thus:
“The basic facts and material particulars,
therefore, which are the foundation of the order of
detention, will also be covered by ‘grounds’ within the
contemplation of article 22 (5) and section 8 and are
required to be communicated to the detenu unless their
disclosure is considered by the authority to be against
the public interest. This has always been the view
consistently taken by this Court in a series of
decisions.”
In Mohammad Yousuf Rather v. The State of Jammu &
Kashmir,(1) Chinnappa Raddy, J., in a concurring judgment,
dealt with the implications of Article 22 (5) of the
Constitution thus:
“The extent and the content of Article 22 (5) have
been the subject matter of repeated pronouncements by
this Court (Vide State of Bombay v. Atmaram (2), Dr.
Ramkrishna Bhardwaj v. State of Delhi (1) Shibbanlal
Saxena v. State of Uttar Pradesh (3) Dwarkadas Bhatia
v. State of Jammu & Kashmir (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
60
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
so as to enable him to exercise effectively his
constitutional right of making a representation against the
order of detention. The obligation which rests on the
detaining authority in this behalf admits no exception and
its rigour cannot be relaxed under any circumstances.
Having given our anxious consideration to this
question, it seems to us impossible to accept the view of
the High Court that sufficient particulars of the first
ground of detention where not furnished to the detenu so as
to enable him to make an effective representation to the
detaining authority, that is to say, a representation which
on being accepted may give relief to him. This is not a case
in which the ground of detention contains a bare or bald
statement of the conclusion to which the detaining authority
had come, namely, that it was necessary to pass the order of
detention in order to prevent the detenu from acting in a
manner prejudicial to the interests of public order. The
first ground of detention with which we are concerned in
this appeal, mentions each and every one of the material
particulars which the respondent was entitled to know in
order to be able to make a full and effective representation
against the order of detention. That ground mentions the
place, date and time of the alleged meeting. describes the
occasion on which the meeting was held, that is, the
‘Shaheedi Conference’. It mentions the approximate number of
persons who were present at the meeting. Finally, it
mentions with particularity the various statements made by
the respondent in his speech. These particulars mentioned in
the grounds of detention comprise the entire gamut of facts
which it was necessary for the respondent to know in order
to make a well-informed representation. The inadequacies
from which the supplementary particulars furnished to the
respondent along with ground No. 1 suffer, cannot affect
that position because, they do not introduce any obscurity
in the facts stated in that ground or detract from the
substance of the allegations mentioned in that ground. The
argument of the respondent that he could not make an
effective representation in behalf of ground No. 1 because
of the inadequacy of data in the particulars supplied to
him, has therefore to be rejected.
However, we are somewhat surprised that in a matter of
this nature,
61
the detaining authority should have adopted a 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 total non-application
of mind because, that order could not have been passed on
the basis of the C.I.D. report which does not refer to any
of the facts which are mentioned in the order of detention.
It is undoubtedly true that the case of the appellants is
that the order of detention is founded upon the report of
the C.I.D., relating to the speech made by the respondent at
the Shaheedi Conference. But the argument of the learned
counsel overlooks that what was furnished to the respondent
was an extract from the C.I.D. report and not the whole of
it. However, that has not caused any prejudice to the
respondent since the grounds and the particulars were served
upon him simultaneously and ground No. 1 mentions every
conceivable detail which it was necessary to mention in
order to enable the respondent to make a proper
representation against the order of detention. Evidently,
the detaining authority had before it the whole of the
C.I.D. report on the basis of which it passed the order of
detention. What was omitted from the extract furnished to
the respondent was incorporated in ground No. 1. It is
therefore not possible to accept the argument that the order
of detention is bad because the detaining authority did not
apply its mind to the question as to whether there was
material on the basis of which the respondent could be
detained.
It was further argued by the learned counsel that the
detaining authority should have disclosed the evidence on
the basis of which
62
the order of detention was passed because, in the absence of
knowledge of such evidence, the respondent could not have
made an effective representation against the order of
detention. There is no substance in this contention. It is
not the law that the evidence gathered by the detaining
authority against the detenu must also be furnished to him.
In Beni Madhob Shaw v. The State of West Bengal,(1) it
was argued on behalf of the detenu that the details of the
activities attributed to him were not disclosed to him, as a
result of which his right to make a representation to the
Government was seriously prejudiced. It was held by this
Court that since the activities forming the grounds of
detention were disclosed to the detenu in clear terms and
since such disclosure furnished adequate information to the
detenu to enable him to make an effective representation
against his detention, the non-disclosure of 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 correct. His right is to receive
every material particular without which a full and
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effective representation cannot be made. If the order of
detention refers to or relies upon any document, statement
or other material, copies thereof have, of course, to be
supplied to the detenu as held by this Court in Ichhu Devi
Choraria v. Union of India.(1) That question does not arise
here since no such thing is referred to or relied upon in
the first ground of detention. Indeed the furnishing of the
C.I.D. report, of which a truncated extract was furnished to
the respondent, was a superfluous exercise in the light of
the facts of the instant case.
Shri Hardev Singh relied upon the following passage in
the judgment in Khudiram in support of his contention that
the entire material which was before the detaining
authority, including the evidence gathered by him, must be
furnished to the detenu:
“But if the grounds of detention are not
communicated to him how can he make an effective
representation ? The opportunity of making a
representation would be rendered illusory. The
communication of the grounds of detention is,
therefore, also intended to sub serve the purpose of
enabling the detenu to make an effective
representation. If this be the true reason for
providing that the grounds on which the order of
detention is made should be communicated to the detenu,
it is obvious that the ‘grounds’ mean all the basic
facts and materials which have been taken into account
by the detaining authority in making the order of
detention and on which, therefore, the order of
detention is based.”
These observations cannot be construed as meaning that
the evidence which was collected by the detaining authority
must also be furnished to the detenu. As the very same
paragraph of the judgment at page 839 of the report shows,
what was meant was that the basic facts and the material
particulars which form the foundation of the order of
detention must be furnished to the detenu since, in the
true sense, they form part of the grounds of detention and
without being apprised of the same, the detenu cannot
possibly make an effective representation.
Shri Hardev Singh found serious fault with the fact
that in answer to the writ petition filed by the respondent
in the High Court, the counter-affidavit was sworn by Shri
K.C. Mahajan, Deputy Secretary in the Home Department of the
Government of Punjab, and
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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 issued in a
habeas corpus petition, it is incumbent upon the State to
satisfy the Court that the detention of the petitioner is
legal and is in conformity not only with the mandatory
provisions of the Act under which the order of detention is
passed but is also in accord with the requirements implicit
in Article 22(5) of the Constitution. Sarkaria, Jobserved on
behalf of the Court:
“Since the Court is precluded from testing the
subjective satisfaction of the detaining authority by
objective standards, it is all the more desirable that
in response to the Rule Nisi, the counter-affidavit on
behalf of the State should be sworn to by the District
Magistrate or the authority on whose subjective
satisfaction the detention order under s.3 was passed.
If for sufficient reason shown to the satisfaction of
the Court, the affidavit of the person who passed the
order of detention under section 3 cannot be furnished,
the counter affidavit should be sworn by some
responsible officer who personally dealt with or
processed the case in the Government Secretariat or
submitted it to the Minister or other Officer duly
authorised under the rules of business framed by the
Governor under Article 166 of the Constitution to pass
orders on behalf of the Government in such matters.”
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After reviewing certain other decisions, the Court held
that the failure to furnish the counter-affidavit of the
District Magistrate who had passed the order of detention,
was an impropriety though in most of the cases it may not be
of much consequence, especially if there was no allegation
of mala fides against the detaining authority. In the
result, the absence of the affidavit of the District
Magistrate was held not to vitiate the order of detention.
In this case too, there are no allegations of mala
fides against the District Magistrate and so, his failure to
file a counter-affidavit will not vitiate the order of
detention. We cannot, however, leave this subject without
emphasising once again the importance of the detaining
authority filing his own affidavit in cases of the present
nature. There are degrees of impropriety and the line which
divides grave impropriety from illegality is too thin to
draw and even more so to judge. Conceivably, there can be
cases in which such impropriety arising out of the failure
of the detaining authority in filing his own affidavit may
vitiate the order of detention.
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 the practice
increasingly adopted by the High Courts, of pronouncing the
final order without a reasoned judgment. It is desirable
that the final order which the High Court intends to pass
should not be announced until a reasoned judgment
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is ready for pronouncement. Suppose, for example, that a
final order without a reasoned judgment is announced by the
High Court that a house shall be demolished, or that the
custody of a child shall be handed over to one parent as
against the order, or that a person accused of a serious
charge is acquitted, or that a statute is unconstitutional
or, as in the instant case, that a detenu be released from
detention. If the object of passing such orders is to ensure
speedy compliance with them, that object is more often
defeated by the aggrieved party filing a special leave
petition in this Court against the order passed by the High
Court. That places this Court in a predicament because,
without the benefit of the reasoning of the High Court, it
is difficult for this Court to allow the bare order to be
implemented. The result inevitably is that the operation of
the order passed by the High Court has to be stayed pending
delivery of the reasoned judgment.
It may be thought that such orders are passed by this
Court and therefore there is no reason why the High Courts
should not do the same. We would like to point out
respectfully that the orders passed by this Court are final
and no appeal lies against them. The Supreme Court is the
final Court in the hierarchy of our courts. Besides, orders
without a reasoned judgment are passed by this Court very
rarely, under exceptional circumstances. Orders passed by
the High Court are subject to the appellate jurisdiction of
this Court under Article 136 of the Constitution and other
provisions of the concerned statutes. We thought it
necessary to make these observations in order that a
practice which is not very desirable and which achieves no
useful purpose may not grow out of its present infancy.
S.R. Appeal allowed and
Case remanded to
the High Court
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