STATE OF PUNJAB v. SUKHPAL SINGH

The Judgment of the Court was delivered by F

K.N. SAIKIA, J. Special leave granted. Heard learned counsel for the parties.

The State's appeal is from the Judgment of the High Court of Punjab and Haryana dated 31.7.1989 passed in Criminal Writ Petit.ion 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 H

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sub-section (2) of section 3 of the National Security Act 1980 (No. 65 A of 1980), hereinafter referred to as 'the Act'; read with section 14A as inserted by National Security (Amendment) Act, 1987, with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with efforts of Government in coping with the terrorist with disruptive a 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 0 State Government through the Superintendent of Jail, and that as soon as possible, his case would be submitted to the Advisory Board within the stipulated period from the date of his detention and if he wished to make a representation to the Central Government, he should address · it to the Secretary, Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi through the Superintendent of Jail where he was detained. It further stated that he had also a right to appear before the Advisory Board for represent- ing his case, and if he wished to do so, he should inform the State Government through the Superintendent of Jail in which he was detained.

It appears that the detenu's son Sukhpal Singh filed Criminal Writ Petition No. 1393 of 1988 in the High Court of Punjab and Haryana praying, inter alia, for a writ of habeas corpus; quashing of the detention order; for production of the detenu in court on the date of hearing; for directing the respondents to arrange the presence of the II' . detenu at Chandigarh before the Advisory Board; and for directing the respondents to make arrangements and pay for the expenses required to be incurred for arranging the presence of detenu's witnesses to be prciduced before the Board at Agartala and also of the relatives and the counsel of the detenu so as to effectively assist him in regard to presenting his case before the Advisory Board.

The High Court by order dated 27.9.1988 dismissed the Criminal Writ Petition, but ordered that "the petitioner would approach the Advisory Board stationed at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board, the expenses for taking those witnes- H ses to Agartala would be borne by the respondent/State."

STAIB OF PUNJAB ,, SUKHPAL SINGH (SAIKIA, J.] 425

Sukhpal Singh later moved Criminal Writ Petition No. 2365 of A 1988 in the.f{iglj Court of Punjab and Haryana for quashing the deten- tion order contending, inter alia, that the order of detention was pas- sed on 28.5.1988 in a cursory and routine manner wi\hout application of mind, much less with subjective satisfaction inasmuch as no case at all was registered against the detenu for his 'alleged public utterences as stated in the grounds of detention and, therefore, the detention order was liable to be quashed; that consideration of the detenu's representation filed with the State Government on September 1, 1988 was inordinately delayed for two months till October 31, 1988 and even thereafter the State took ~ long days to convey its rejection and the representation addressed to the detaining authority had neither been considered nor disposed of; and that detention was confirmed without affording the detenu any chance of appearing and producing witnesses before the Advisory Board in terms of the High Court's order dated 27 .9.1988 in Criminal Writ Petition No. 1393 of 1988.

The High Court upheld the above contentions of the petitioner, namely, lack of subjective satisfaction, delay in considering represen- D 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 assail- E ing the findings of the High Court submits that the High Court's find- ing that there was no subjective satisfaction of the detaining authority simply because no criminal case was registered against the detenu for his public speeches is erroneous both in law and facts. The allegations were that during the period from November 19, 1987 to May 11, 1987 the detenu made 9 provocative speeches as stated in the grounds of detention inciting communal hatred and violence between Hindus and Sikhs, inciting Sikhs to armed violence against the Government es- tablished by Jaw· both in the State and in the Centre and making the offer of monetary and other assistance to the terrorists. When the . detention order was passed the detenu was already detained in Burail Jail and the detention order itself said that he was already in custody and was taking steps to get himself released and there was every likeli- hood of his being released from custody; and that in the event of his release he was likely to resume such prejudicial acitivites in future and there was thus compelling necessity to pass the order. He submits that the subjective satisfaction of the detaining authority was based on pertinent materials and it had in mind the question whether the pro- H

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secution of the detenu would be possible and sufficient. Mr. Kapil A 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 deten- tion order. We find force in the submission of the learned Attorney B 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 preven- tive detention without first criminally prosecuting the detenu. A clear distinction has to be drawn between preventive detention in which c anticipatory and precautionary action is taken to prevent the recur- rence 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 short- circuited by apparently handy and easier resort to preventive deten- D tion. 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 necessa- rily be bad. The failure of the detaining authority to consider the desirability of launching a criminal prosecution before ordering pre- H ventive detention may in the circumstances of a case lead to the con- clusion that the detaining authority had not applied its mind to the important question as to whether it was necessary to make an order of preventive detention but such is not the case here. In this regard one has to bear in mind the relevant facts and cir.cumstances of a case including the time and place concerned. In this view we find support from the decision in Fazal Ghosi v." State of U.P. & Ors., AIR 1987 SC 1877: [1987) 3 SCR 471, wherein it was pointed out that the Act provided for preventive detention which was intended where it was apprehended that the persons might act prejudicially to one or more considerations specified in the statute, and the preventive detention was not intended as a punitiv~ measure for curtailment of liberty by way of punishment for the offence already committed. Section 3 read with Section 14A of the Act clearly indicat~d that the power of deten- tion thereunder could be exercised only with a view to preventing a person from acting in a manner which might prejudice any of the situations set forth in the Section. To appy what was said in Rex v. Halliday, Ex parte Zadig, 1917 AC 260, one of the most olwious.means of taking precautions against dangers such as are enumerated is to

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

In actual practice the grounds supplied operate as an objective test for determining the question wheter a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. A conjoined reading of the detention order and the grounds of detention is therefore necessary. It is, as was held in Ujagar Singh v. State 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 proxi- mate and should have a rational connection with the conclusion that the detention of person is necessary. The question of relation of the activities to the detention order must be carefully considered. Though the possibility of prosecution being launched is not an irrelevant con- sideration, 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 G 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 deten- tion is necessarily bad? Unless it clearly appears that preventive deten- tion 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. H

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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 suffi- cient ground for detention. It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in 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 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; unlaw- ful 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 develop- ment. 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 bui the authority is to satisfy the court that it had in mind the question of possibility- of criminal prosecution while forming the suhjective • satisfaction by the detaining authority. It may be based on inference from the past conduct and antecedent history of the detenu. The High Comt unqer Ap. 226 and Supreme Court under Art. 32 or 136 do not sit in appeal from the order of preventive detentfon. But the Court is only to see whether the formality as 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 respons1- A 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 B 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 pbs- sibly succeed against the detenu because he had influen.ce over witnes- ses and against him no one is prepared to dep0se.· However, pusil- lanimity on the part of the executive has to be deprecated and pusil- lanimous ordets avoided. D It is submitted that-ifi the instance case, there. were sufficient materials to show that the detenu would act in the future to the pre- judice of the maintenance of public order, security of the State and ,tne ·Government's effort to curb terrorism. From the nature and contents of his speeches stated in the grounds of detention there was sufficient justification for the inference that he would repeat such speeches if bot 'E preventively detained. Again when grievous crime again~! the cii>m- munity 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 & F 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 possi- bility 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 deten- tion; 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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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 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 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 non- registration 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). F The State Government was not aware of pendency of any such rep- resentation with it. On 13.9.1988 the Central Government issued a • 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 com- ments on the representation of the detenu. However, the Central G 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 H 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 tele- printer 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 holi- day), 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 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 Govern- ment 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 F 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 G 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 H

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detenu should address the representation to the State. Government A 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 B the facts and circumstances stated above.

The State of Punjab having bi:en under the President's rule at the 0

relevant time and 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, c 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 Pun- jab. However it appears that the representation said to have been meant for the State Government was not received by the State Gov- ernment 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 expedi- tious 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 consi- deration of the representation by the Advisory Board. There should not be any delay in the matter of consideration. It is true that no hard 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 citi- zens. 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 representa- H tion as soon as possible, and this preferably, must be before the

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representation is forwarded to the Advisory Board before the Ad- A visory 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 obser- vations are not to be so understood, and there has to be lee-way depending on the facts and circumstances of the case. However, no B allowance can be made for lethargic indifference or needless procrasti- nation 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 possi- ble and it will depend upon the facts and circumstances of each case c 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 representa- tion of the detenu after hearing by the Board, the Administrator was not entirely influenced by the hearing before the Board and the appli- cation 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. H

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Article 21(5) of the Constitution enjoins that when any person is A 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 B 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 communi- c cate 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 constitu- tional Imperatives enacted in Article 22(5) are two fold; ( 1) the detain- D ing 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 represen- tation 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 secu- rity." In State of Orissa & Anr. v. Manila/ Singhania & Anr., (supra) the representation was made on October 21, 1974 and it was received by the District Magistrate on the same day. The representation was processed through the different authorities. The Chief Minister was absent from headquarters between November 7, 1974 and November 12, 1974 and immediately on return to headquarters the Chief Minister disposed of the representation and rejected it on November 12, 1974. It was found that there was no delay at any stage in movement of the representation from one officer to another. Every one having dealt with it promptly and after examining it submitted to the respective higher officer. The Chief Minister was out of the Capital and as soon as she returned without any delay at all disposed of the representation. Accordingly this Court did not see any gap between the receipt of the representation and its consideration by the State Government which could be said to be unreasonably long and the period had been satisfactorily explained in the affidavit of the State. Accordingly the order of detention could not be held to be invalid on that ground. On

STATE OF PUNJAB v. SUKHPAL SINGH {SAIKIA, J.] 435

the other hand in Saleh Mohammed v. Union of India & Ors., [1980] 4 A sec 428 a delay of 22 days in considering the representation of the detenu was held to have violated Article 22(5) and .vitiated the deten- tion order. The representation in that case was lying unattended in the office of the Superintendent of Jail or the Inspector General of prisons and accordingly it was held to have been a case of gross negligence and chilling indifference and on that short ground alone the detention B order was quashed. In Kam/a Kanya/al Khushalani v. State of Maharashtra & Anr., [1981] 1SCC748 where the disposal of detenu's representation was delayed for 25 days it was held that the continued detention of the detenu was void and that it was of the utmost impor- tance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure ·from any of the safeguards would void the c order of detention. In Rattan Singh v. State of Punjab and Ors., [1981] 4 SCC 481 the representation to the State Government and the Central Government were made by the detenu simultaneously though the Jail Superintendent who should either have forwarded the representation separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government. "Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it" with the inevitable result that the detenu had been unaccount- ably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chandrachud, C.J. speaking for the Court observed:

"But the laws of preventive detention afford only a mod- ~· icum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our demo- F cratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a G representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The H

436 SUPREME COURT REPORTS [ 1989) Supp. I S.C.R.

A continued detention of the detenu must therefore be held illegal and the detenu set free."

In Youssuf Abbas v. Union of India & Ors., [1982) 2 SCC 380, the detenu claimed to have made a representation against his deten- tion 11n October 1, 1981. Government stated that an undated represen- B tation was received by it from the District Magistrate on October 23,

1981. The Advisory Board met on October 23, 1981. Thereafter the Government rejected the representation of the detenu on October 29, 1981. Admittedly the representation was not forwarded to the Advisory Board. It appears that the representation was forwarded by the Superintendent Centfal Jail to the Distict Magistrate on October 20, 1981. Why his representation was detained 'with the Superinten- c dent, Central Jail from October 1, 1981 to October 20, 1981 was not explained. On that ground alone the writ petition was allowed and the detenu was directed to be set at liberty forthwith. In Asha Keshavrao Bhosa/e v. Union of India & Anr., [1985) 4 SCC 361, it was found that a representation was made by the petitioner on behalf of the detenu which was received in the office of the Chief Minister on November 28, 1984 and orders on that representation were passed on January 23, 1985 and the same orders were received on January 28, 1985. In the representation made by the petitioner himself to the Chief Minister, the order of detention was casually impugned but lot of attention appears to have been bestowed on the necessity of keeping the detenu in a Bombay Jail instead of sending him to Nasik Road Prison as directed in the Order of detention. A detailed representation was made by the.Secretary of an association which espoused his cause and that representation was received on November 29, 1984 in the Sec- retariat of the Chief Minister and was forwarded to the Home Depart- ment on December 3, 1984 and was finally disposed of on December .. F 12, 1984 and the rejection thereof was communicated on December 13, 1984. This Court held that the petitioner was not entitled to make tenable submission on the score of delay in disposal of the representa- tion. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India & Ors., [ 1989] 3 SCC 277, the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on June 16, G 1988 for more onward tansmission to the Central Government has callously ignored and kept it unattended for a period of seven days and as a result of that the representation reached the Government 11 days after it was handed over to the Jail Superintendent without any expla- nation despite opportunity given by this Court. Pandian, J. speaking for the Court observed: ., H

STATE OF PUNJAB v. SUKHPAL SINGH (SAIKIA, J.] 437

"In our view, the supine indifference, slackness and callous A attitude on the part of the Jail Superintendent who had unreasonably delayed·in transmitting the representation as an intermediary; had ultimately caused undue delay in the disposal of the appellant's representation by the Govern- ment which received the representation 11 days after it was handedover to the Jail Superintendent by the detenu. This B avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and con- stitutionally impermissible."

Similarly in T.A. Abdul Rahman v. State of Kera/a & Ors., Jt. Today 1989 3 SC 444, the representation was submitted originally on C 25 .1.1988, but was got back and resubmitted on 2.2.1988 and was received by the third respondent only on 16.2.1988 and took time upto 28.3.1988 in receiving the comments of the Collector of Customs. Again there was a delay of seven days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA section. In the opinion of their Lordships, the D manner in which the representation had been dealt with revealed a sorry state of affair in the matter of consideration of the representation made by the detenu. It was not clear why such a long delay from

t 16.2.1988 to 28.3.1988 had occasioned in getting the comments from the Collector of Customs. Their Lordships extracted what was said in Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police & E Ors., [1989] 1 Scale Vol. 1 p. 22:

"The. detenu has an independent constitutional right to make his representation under Article 22(5) of the Con- stitution of India. Correspondingly, there is constitutional mandate commanding the concerned authority to whom F the detenu forwards his representation questioning the cor- rectness of the detention order clamped upon him and requesting for his release, to consider the said representa- tion within reasonable dispatch and to dispose the same a' expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional im- G perative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued de- tention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty-the' highly cherished right which is enshrined in Article 21 of the Constitution." H

438 SUPREME COURT REPORTS [1989] Supp. I S.C.R.

" ..... What is reasonably dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its considera- tion by the authority is so unreasonably long and the expla- nation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention."

Their Lordships accordingly held that the representation of the detenu had not been given prompt and expeditious consideration and was allowed to lie without being properly attended to and secondly the unexplained delay in the disposal of the representation was violative of Article 22(5) of the Constitution of India, rendering the order of detention invalid.

In the instant case we are satisfied that after receipt of the zerox copy from the Central Government, the State Government took only 13 days including 4 holidays in disposing of the representation. Con- D sidering the situation prevailing and the consultation needed in the matter, the State Government could not have been unmindful of urgency in the matter. But the facts remain that it took more than two months from the date of submission of the representation to the date of informing the detenu of the result of his representation. Eight days were taken after disposal of the representation by the State Govern- E ment. The result is that the detenu's constitutional right to prompt disposal of his representation was denied and the legal consequences must follow.

Assailing the finding of the High Court that opportunity was not afforded to the detenu to appear and produce his witnesses before the F Advisory Board, the learned Attorney General submits that the find- ing is not correct inasmuch as in spite of the best endeavour on the part of the detaining authority to produce the detenu and his witnesses · before the Board in terms of the High Court's order dated 27.9.1988, the detenu himself on a lame excuse avoided appearing and producing his witnesses before it and thereby left no other alternative than to tender its opinion to the State Government on 17 .11.1988 whereupon th_e State Government confirmed the order of detention vide its order dated 22.11.1988.

It appears that it was decided to hold the sitting of the Advisory Board at Indore on 12.11.1988 which was admittedly a week before the mandatory last date for submitting the report. On 8.11.1988 the

STATE OF PUNJAB v. SUKHPAL SINGH ISAIKIA, J.] 439

detenu at Agartala prayed for postponement of the Board sitting. The A State Government informed the Board on the basis of Teleprinter message dated November 8, 1988 received from Agartala that the detenu was unable to undertake the journey from Agartala to Indore. Thereafter, the arrangements made to carry the detenu and his witnes- ses to Indore by plane, were also cancelled by the State Government of Pun jab and the detenu was told through the Inspector General of B Prisons, Tripura by communication dated 11.11.1988 as follows:

"In response to this office message dated 8.11.1988, Government of Pun jab has informed me that next date'Of hearing as fixed by the NSA Board, Punjab, will be intimated. This is in connection with his prayer dated 8.11.1988 for postponement of hearing by the NSA Board, c Punjab on 12.11.1988 in the District Jail, Indore. This may kindly be noted."

Admittedly, the detenu was arrested on 28.5.1988. The total period for Advisory Board's report under s. 14A (Z)(d)(i) was five D months and three weeks. Reference to Advisory Board was made on 26.8.1988. So the period would expire on or about 19.11.1988. The Board fixed 12.11.1988 for its sitting. The detenu prayed for adjourn- ment as because of frozen joint he was unable to perform ablution and tie his turban. Whether that was a lame excuse or not need not be decided. The fact remained that he was told of another sitting of the E Board. Having a week in hand it would perhaps have been possible to hold another sitting of the Board and give the detenu an opportunity which however, did not come. Of course the decision was that of the Advisory Board and not of the State Government. The High Court· rightly observed that there was a.communication gap. It is true that the Advisory Board is not a )udicial body. It is charged with the responsi- F bility 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 Government under s. 12(2) of the Act to release the detenu forthwith. The detenu in this case did not have that opportunity to show that there was no suffficient cause for this detention. Expressing inability to appear once could not have G been treated as the detenu's not desiring to be heard under s. 11(2) of the Act. In fact he desired to be heard and to produce his witnesses. The result was that despite the State Government's communication he was deprived of this opportunity. What then would be the result?

As was observed in Dr. R.K. Bhardwaj v. The State of Delhi & H

440 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

Ors., [1953] SCR 708 preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. Following D.S. Roy v. State of West Bengal, (1972] 2 SCR 787 it can be said that Article 22(4) pro- vides that no law providing for Preventive Detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within that period that there is in its opinion sufficient cause for such detention. Law therefore mandates a t reference to a Board and for it to report on the sufficiency or otherwise of the detention which should be within three months from the date of detention. It this case it is for this reason that after the Constitution • every legislation dealing with Preventive Detention has made specific c provision for confirmation and continuance of detention in view of the constitutional mandate in Article 22(4). In this case, s. 11 of the Act prescribes 5 months 3 weeks. Unless the Board has made a report to the effect that there is a sufficient cause for such detention within that period from the date of detention there can be no detention of a 0 person under any law for a longer period than that. Relying on the observation of M.H. Beg, J. in P.D. Deorah v. The District Magistrate, Kamrup & Ors., (1974] 2 SCR 12 it can be said that the gravity of the evil to the community resulting from anti-social activities can not furnish an adequate reason for invading the personal liberty of a citi- zen, except in accordance with the procedure established by the Con- stitution and the laws. 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 assaults on personal liberty over the years. Social security is no doubt the most important goal of the State but it is not the only goal of a good society. There are other important values in a society. One of the foremost and fundamental right guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law. Libertas inestimabi/is res est. Liberty is an inestimable thing above price. Libertus omnibus rebus favourabi/ier est. Liberty is more favoured than all things (any- thing). It would be ironic if, in the name of social security, we would G sanction the subversion of this liberty. When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is strictly observed. As long back as in N.P. Umrao v. B.B. Gujral & Ors., (1979] 2 SCR 315 at page 321 it was held to be well settled that in case of preventive detention of a citizen, the Constitution by Art. H 22( 5) as interpreted by this Court, enjoins that the obligation of the

STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 441

appropriate Government is to afford the detenu the opportunity to make a representation and to consider that representation and there is the Government's obligation to constitute a Board and to communi- cate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. It was al§o reiterated that when liberty of the subject is involved under a preven- tive detention law it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. Two of these safeguards under Art. 22 which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22(5) of the Constitution. These safeguards might be designated as a regulative c postulate of respect, that is respect for the intrinsic dignity of the human person. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government. As was pointed out in V.C. Jawantraj Jain v. Shri Pradhan & Ors., [1979] 3 SCR 1007 one of the two safeguards provided to a detenu is that his case must he referred to an Advisory Board for its opinion if it is sought to detain him for a longer period tahn three months and the other is that he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the detain- ing authority as early as possible before any order is made confirming the detention. Neither safeguards is dependent on the other and both have to be observed by the detaining authority. It is no answer for the detaining authority to say that representation of the detenu was sent by it to the Advisory Board and that the Board has considered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on consider- ing the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu. It is imperative for the State Government to consider the representation of the detenu before making the order confirming the detention. Fazal Ali, J. emphasised in Bal Chand Choraria v. Union of India and Ors., [1978] 2 SCR 401 that in matters where the liberty of the subject is concerned and a highly cherished right is involved, the representation made by the detenu should be construed liberally and not technically so as to frus- trate or defeat the concept of liberty which is engrained in Art. 21 of the Constitution of India. In Smt. Kavita v. The State of Maharashtra & H

442 SUPREME COURT REPORTS (1989] Supp. 1 S.C.R.

Ors., [ 1981] 2 Cr!. L.J. 1262 AIR 1981 SC 1641, it was emphasised that A the Advisory Board is charged with the task of submitting the report within the prescribed period after hearing the detenu, specifying its opinion as to whether or not there is sufficient cause for the detention of tfie person concerned.

B The Advisory Board, as was held in A.K. Roy v. Union of India, (1982] Vol. 88 Cr!. L.J. 340, is to consider the question whether there is sufficient cause for the detention of the person concerned and not where- the detenu is guilty of any charge. The detenu may therefore present his own evidence in rebuttal of the allegations made against him and may offer other oral and documentary evidence before the Advisory Barod in order to rebut the allegations which are made c against him. If the detenu desires to examine any witnesses, he shall keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them. The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. If report is submitted D by the Advisory Board without hearing the detenu who desired to be heard it will be violative of the safeguards provided under Article 22 of the Constitution and ss. 10 and 11 of the Act. Failure to produce the detenu, unless it is for wilful refusal of the detenu himself to appear, will be equally violative of those provisions. In State of Rajasthan v. Shamsher Singh, (1985] Suppl. 1 SCR 83 the importance of the pro- E ceedings before the Advisory Board was highlighed. In fact it is the only opportunity for the detenu of being heard along with his rep- resentation for deciding whether there was sufficient cause for his detention.

The increasing need for ensuring public safety and security in the F State of Punjab and the Union Territory of Chandigarh has been re- flected in the recent successive amendments of the National Security Act (Act 65 of 1980) with which we are concerned. The Act was amended by the National Security (Amendment) Ordinance, 1984, which was repealed by the ~ational Security (Amendment) Act, 1984, (18th May, 1984) (Ad No. 24 of 1984) which was deemed to have G come into' force on the 15th day of April, 1984. Section 2 of this amendment Act provided that the National Security Act, 1980 shall, in iis application to the State of Punjab and the Union Territory of Chandigarh, have effect subject to the amendments specified in ss. 3 to

5. Section 3 was amended to the extent that in sub-section (4) of s. 3 of the Principal Act (detaining officer reporting to the State Govenment) H in the proviso, for the words "10 days" the words "15 days" shall be

STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 443

substituted and for the words "15 days" the words "20 days" shall be A substituted. Similarly in sub-section (1) of section 8 (communicating grounds of detention to the detenu) for the words "10 days" the words "15 days" shall be substituted. A new section namely, section 14A was inserted after section 14. This was followed by the National Security (2nd Amendment) Act, 1984 and the National Security (Amendment) Act of 1985. This was followed by the National Security (Amendment) B Ordinance of 1987 which was repealed by the National Security Amendment Act, 1987 (Act No. 27 of 1987) which further amended the Act in its application to the State of Punjab and the Union Terri- tory of Chandigarh. The National Security (Amendment) Act, 1984, section 4 of the National Security (2nd Amendment) Act, 1984, the National Security (Amendment) Act, 1985 and the National Security (Amendment) Ordinance, 1987 were thereby repealed. This was fol- t lowed by the National Security (Amendment) Ordinance, 1988 which was repealed by the National Security (Amendment) Act, 1988 (Act No. 43 of 1988).

In Section 14A as inserted by the Amendment Act of 19~4, the provision was "where such person had been detained with a view to preventing him from acting in any disturbed area, in any manner pre- judicial to ....... "

It was by tbe National Security (Amendment) Act, 1987 (Act No. 27 of 1987) that the provision of detention without obtaining the opinion of the Advisory Board for a period longer than 3 months, but not exceeding 6 months, from the date of his detention where such person had been detained with a view to preventing him 'in any dis- turbed area'-(1) "from interfering with the efforts of Government in coping with the terrorists and disruptive activities", was inserted. F We find that while sub-section (2) of section 3 of the Act before the amendment of 1984 provided that the Central Government and the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial G to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained, section 14A as inserted by the Amendment Act of 1984 provided that notwithstanding anything contained in the foregoing provisions of this Act any person in respect of whom an order of detention has been made at any time before the 3rd day of April, 1986 H

444 SUPREME COURT REPORTS [1989) Supp. 1 S.C.R.

A may be detained without obtaining tbe opinion of tbe Advisory Board for a period longer than three montbs but not exceeding six months, from the date of his detention where such person had been detained with a view to preventing him from acting, in any disturbed area, in any manner prejudicial to (a) the defence of India; or (b) tbe security of India; or (c) the security of the State; or (d) the maintenance of B public order; or (e) the maintenance of supplies and services essential to the community. The amendment Act of 1987 added of these the ground "from interfering with the efforts of Government in coping with the terrorist and disruptive activities."

Thus as a result of these amendments applicable to the State of c Punjab and the Union Territory of Chandigarh we find on one hand addition to the grounds of detention and on the other, extension of the 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. This reminds us of D what was said, of course in a slightly different context. "Amid the clash of arms laws are not silent. They may be changed, but they speak the same language in war and peace." Would laws speak in a different language in internal disturbance? Lex uno ore omnes alloquitur. I;aw addresses all with one mouth or v01ce. Quotiens dubia interpretatio libertatis est secundum libertatem respondendum erit Whenever there is E a doubt between liberty and bondage, the decision must be in favour of liberty. So says the Digest.

The result in that this appeal fails and is dismissed. As ordered by the High Court the detem1 is to be set at liberty forthwith, if he is not required to be detained in connection with any other case. F R.N.J. Appeal dismissed.