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STATE OF PUNJAB

v.

JAGO.EV .S.INGI-i TALWANDI.

December 16, 1983

. [Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, AMARllNDRA. NATH

SEN, D.P. MA.DON AND M.P .. THAKKAR, JJ.]

A· Con'Stifution of Jndfa, ]950, Artic!e 22 (5)-Pr_eventive Detention-Duty

OJ detaining Authority-Con1p(iance with· strict terlns of the Constitution is a .

1nust-National Security Act (Act LXV of 1980) section 3.

l. B · .Preventiv'e.Detentio~-,vational Securiiy Ac/ (Act LXV) of 19~o-seCtion

3 read. w;th Article 22(5) of the Constitution of Jndia, 1950-Ful.' details of the

:Prejudicial activi11:es (dated, tinte pnd place) mentioned in the grout'ds of detention,-'·

but not in the supporting particulars-Whether non~1nention fr1 the ·,~supporting

particulars vitiate the entire pdoceedings" ? .

C. Preventive Detention-Evidence gathered need not be furnished to the

Deten1,1. ..

D. Prl}Vt:ntive Detenton matter.J-Corllzter-afjidavits,by the detaining authority

01i receipi of notice ·of the writ, ilot bein'g /lirnished...:._Effect of· non-Jurnishing­

Constitution of India, 1950 Article 22(5).

E. Practice & procedure-Pronouncing final order without reasoned j1idgment

and reserving the .Janie in Preventive .Det"ention CaSes-Prac1ice deprecated

Conrlilution Of India Ar_ticle 226, 136 read with Civil Procedure Cod~ sections 33,107 '

aizd. Criminal Procedure Code, Section 354, Dif!er~nce' betwetn_High Court &

Supreme Cour~ Proceffures, explained. ·

. The respondent challenged the order of his detention Passed ~y the District

Magistrate, Ludhiana on October 3',1983 under section 3 (::i) read with section

3 (2) of .the Natio'nal Security Act,·1980. through Criminal \Vrit P~tition '.No. 516

of· 1983 .. :\ccor<ling 'to ihe Petitioner fespofldcnt. 'the' ground:; of detention

served

on.

hin1· ori Oct. 6, 1983.showing ~hat he was detained On t:1c, basis of two

sPeeches made by

him on 8.7.1983 and 20.9.1983 as recorded by the Crime

Investigation Depart.Jnent

of the

Punjab· Police contained certa n particulars,

which were. totally' absent from the supporting n1a:tcrial and ihcrCfore no.

'reasonable Person could have Possible Passed the ·4etention order on the basis'

of such material. The High Coui-t accepted the contention and Ola.de the rule

absol~te. Hence the appeal by th,e State after obtainiilg special kave.

'

Allo\ving the appeal and · rcmandin~ the n1attei to the Jfir,h Court of ••

Punjab, the.Court

H · H'E.LD : ! :J. -While passing orders of detaining. great care JU~ st be brought

t b their task by the detaining authorities. Prevell~ive d!tention is .a·

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PUNJAB V. J.S. ;TALWANDI 51

necessary evil but essentialJy an evil. Therefore: deprivation oi Personal liberty,

if'at all, has to be on the strict tenns of the Constitutiori. 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 ·ta·. the meeting, .

which are mentioned in ground '.No.1. The detaining ·authOrit:Y needlessly·

~pplied his scissors excising the data which mentioned the date, place, the iime

and the. occas.ion of the meeting. It is this IaCk of thoughtfllIIless on the part

of the detaining authority which furnished tQ the respondent the semblance of

an argument. f61 A-BJ

2. The contention of th; respondent that he ·could not fnak~ ~n effective

representation in b~half of ground No.1. because.of the inadequacy of data i~·

the supporti~g particulars supplied to him i.s .incOrfect. The .. i'nadequacies from

which the supplementary particulars furnished to the respondent along with ground

No.J suffer, cannot affect that pcisition because,_ they do -nOf introduce any obs_-·

Curity in the facts stated in that ground or detract from the substance of thC alle-

. gatiQns. mentioned in th<it ground. The fii'st ground of detention mentions that

· the detenu Was right only form"aily or technically. That is because, the C.I.D;.

Report was suppJied to him along with the grounds· of detention with the

express stipulation that it for'med "the bas'e of th~ grounds of dctentiOn."·. The

?rou!Jds mention every· one of fhe details which need have been mentihned. ·Tiie

C'.l.J?. report was .f~rnished to the. detenu as forming the source 9f information

leading to. the conclusion that he· had inade a speech ·which. necessitated his

, dete"ntion in 1he interests of public· Order. In the ~ircumstances, the grounds and'"

the material furnished to the·detenu have to be read together as if the material

in the form.

of the

·c.J.D. report was a continuation of the. gr:ounds of

detention. [57 C-E, 60 F-HJ . .

Dr .. Ramakrishna Bhardwaj· v: The State of Delhi, [1953] SCR 708,

I<hudirnm Das v. The'State of West Beng;l, [1975J 2 5.C.i<. 832,@ 838 & 840;

Mohammed Yusuf Rowther v. fhe Stqte of J & K, [1980J l SCR 258@268, 269;_

State of BomQa~·v. Atmaram, [_1951].S.C.R. 157; shibbanlal ·Saxena v. State of·

Uttar PradesJ,, {1954] SCR 418;

0

Dwarkadas ·Bhatta·v. State of Jammu & KiJshn:ir.

[1956J S.CR. 948; referred lo.

3. The detenu is noi entitled to be informed of the source .oi informa:tio'n

received again~t,him "ar the cvidence-~hich 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 e~ery· material _particul:ir without which. a full

. and effective representation cannot be n1ade. If the order of the detention' refers

to

or relies

upori any docu01ent, statement or Other material, copies thereof have,

of course, to be supplied' to the detenu. It is not the Jaw t]lat evidence gat~ered

by the detaining authoify against .the detenu n1ust also be· furnished to

liim. [62 G-H; 63 A-BJ

Beni Madhob Shaw v. The State of West· Bengal, A.I.R. 1993 S.C. 2455

Har JasDev Singh v. St;te of Punjab, [1974] I SCR 281 @288; Vakil Vakil Singh:

v. State of Jammu & Kashmir, A.I.R. 1974 2337@2341; icchu Devi Chorar_ia V.

Union of India, [1981J l SCR 640@ 650; refer.red to. "

4:· Th~ .failure to furllish the counter-affid~Vit of the District Magistrate who·

h'1-i. p1ss:!1 the. ord:;:r-of 4"Ctentibn. was an improprietY though in most of the cases·

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52 SUPREME COURT REPORTS [1984] 2 s.c.R.

·it m1y not be of milch coruequence, especially if there was no ~llegation of maJa

fides against the detaining authority. There are no allegations of ma/a fides against

the District Magistrate

and so,-his failure to file a

counter-affidr,vit Will not vitiate

the order of detention. [65 A-DJ ·

Shaik Hanifv. State of West Bengal, [1974] 3 SCR 258; Naranja11 Singh v.

State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.

· [The Court emphasised the in1[10rtance· of the detaining authority filing his

own affidavit in cases

of

the present nature and observed that-"Thcfc are degrees

of i_mpropriety and the line which divides grave impropriety from illegality is too

thin to draw and even more so toJudge. Conceivably, there can be c:_:ises in which

Sllch impropriety arising out of the failure of the detaining authority in filing his

·owri affidavit may \itiatC the order of detention.J [65 C-D]

·s. It is desirable that the final order which lhe High Court intends to pa!is

should not be "announced until a reasoned judgment is ready for pronouncement.

If the objoct·of passing such Orders i! to ensure sp'cedy compliance with them, that

object is more of.ten defeated by-the aggrieved party filing a· special leave petition

in this Court against the order

passed by the High

Court. ThC!;t places this Court

in a predicament because, without the benefit of ihe reasoning cif the High Cotlrt

it is difficult for this Court to <.lllow the bare Order to be implcn1ented. The result

inevitably .i! that the operation of the order passed by the High Court has to be ..

Stayed ·pending deliver) of the re~soned judgment. [65 H; 66 A·CJ ·

CRIMINAL APPEALATE JURISDICTION : Cri~inal 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, Addi Adv. GenL of·

·Punjab, D.S. Brar, Asst! Adv. General, G.S. Mann .. Deputy Adv.·

General, R.D. Aggarwal, Govt. Adv0caie, Miss .4 S11bhashini and

S.K. Bagga for the Appellants.

Hardev Singh, G.S. Grewal, N.S: Das Behl; R.S. Sodhi' and

J.S. S~ndhawalia, 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 lear_ncd Single

Judge of the High Court of ·Punjab and Haryana in Crimir.al Writ

Petition No. 51.6 of 1983: That Writ Petition was filed by 1he resc

p~ndent, Shri Jagdev Singh. Talwandi, to challenge an order of

dotention pas~ed by the District Magistrate, Ludhiana, on Octob.cr 3,

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PUNJAB v. J.S. TALWAN!:>I (Chandra~hud, C.J.) 53

J 983 whereby the respQildent was detained under section 3 (3) read·

with section 3 (2) of the .N'aiional .security Act, 1980.

The respondent was arrested in pursuance of the order of de-·

· te'ntion on the night between October 3 and 4, 1983: ·He was first

ladged in the ·central Jail, Patiala and from there .he was taken to

A'nb1la, 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 awity fr,om .Ambala .. He withdrew that

p~tition on an assurance by the Government that he will be sent back

to /\:nbila. whi<;h the Government did on October 28.

The grounds of detention were served on the respondent on

'ootobtr 6. 1983. Those gr6unds show that the petitioner was

detained on the basis of two speeches allegedly made by him : one ·

on July 8. I 983 at .N'ihang Chhowani, Baba Bakala, District Amritsar

and the ot.her on September ·20, 1983 at ·Gurdwara Manji Sahib.

A11ritsar. ·The grounds furnished to the petitioner read thus ~

"(I) That yo!} in a Shaheedi Conference which was held

from

11 a.m. to 4.45 p.m. on 8-7-1983 at a place kn<>wn as 'Nihang Chhowaui' at Baba Bakala, Dist­

rict 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

TaranTaran and

stressed· that in order. to take revenge Sikhs would

kill their (Police)' four persons in lieu of the two

Nihangswho _had been killed 'in the said enccunters.

(2) That while ·addressing a conference . convened by

• the AISSF (All India Sikh Students Federation) on

20-9-1983 at Gurdwara Manji Sahib al Amritsar

and attended by about 7000/8000 Sikh students, you

made a provocative.speech wherein you said· that all

efforts made for the

su.ccess of the Akali

Mo·rcha

having failed, it was still time to establish in Punjab

a Government parallel. to the ~entraf Government

and that you are in a position to form such a Govern­

ment.· You further exhorted that the establishment

< .of Khalsa Raaj wasthe only solution to the problems.

You ~lso made a suggestion that . the Govern'meri!

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SUPREME COURT REPORTS [1984] 2 s.c.R.

will not accept aqy demand dnless it was compelled

by force to do so. This statement was also pub­

lished ·.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, l967, was registered at

Police Station 'E' Division 'Amritsar, which is

under investigatiO)l.'i '

•:

.The detaining !'uthority stated in, the last .paragraph of the

. detention order that the ~espondent was being supplied the grounds

, _

of detentionin

Punjabi (Gunnukhi script) together with an !lnglish

tran.slation thereof and the "'supporting material forming the ·base of­

the grounds of det(;ntion". The "supporting material'', b)'. which

i.s meant ,particulars of the. grounds of detention; was supplied to

.:)he .respondent. along· with the. grounds. These particulars consist

·of what is alleged to. be, a report of the speeches made by the-respon­

dent, 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

Elio AL read thus :

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"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

ivere killed, because no rollcall is taken 6f the Sikhs; how

many came and how many went.

Further said that in Punjab hundreds of : innocent Sikhs

have beeq made the target of bullets. · The Government has .

seen that the Sikhs .go away after paying homage to thC

· martyrs.. Now we will have to decide as to what steps should

be taken. The beloved army oi' Guru' (Nihangs) have pro-.

tected 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 othey ·;..,ill slo~ly finish· us. . .

. ·The_ new Iiispector-General of Police Mr. Bhind~r, has

.stated ihat there are no extermists· in Darbar Sahib. Further ' ·

said that Congress wants to finish self respect among you.

· .cha which is launched by A)<ali D · . l, is to save the

The M;rcha, which Js l~unched by Akali Dal, is to s~ve fhc

·H Sikh appearance. The awards have been given to policl:, have

· they wpn any war? Such a big attack· upon the Nihan~s was_

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PU'NJAB v. J.S. TALWANDI (Chandra.chud, C.J.) 55

ou a pre-planned programme: I say .if tlrcy have killed A

onr two men, then you should kill four. J.f they come to

idll me like this, then I will die after killing them .. I wil!

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 B

the file.''. ·

One of the grounds on which the order 6£ detention was chal­

lenged in the High Courf 'was that the State Government had failed·

to. discharge its. obligation under Article. 22 (5) of the Constitution

by denying

to.

t1le respondent an effective opportunity to make a re-c··

presentation. to the Advisory Board-against the order of detention.·

On being· asked by· the learned Judge "to be more specific", counsel

for the respondent statoo in th.e High Court that the State Govern-

ment had not supplied to the respondent the supporting material on

which Ground No. 1. o.f the ,grounds ·of detention was based. Shri

Hardev Singh, who appears' on behalf of the respondent, adopted D

that contention by clarifying that the case of the respondent is that

the relevant facts· stated in the !st ground of detention are totally

absent .from the supporting material supplied to ·him and, therefore,.

· n·J reaso·nable person could have possibly. passed the detention order ·

on the basis of that materfal. The learned .counsel l!rged. that the

order

of detention was bad

either because the detaining authority E

did not apply its mind to thi<. 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 colltention an<! the .Prejudice said to have b,een caus­

ed to him. the learned Judge of the High Court resorted to an ingenious .

device. He coined

a conversation

betwee~ the detaining authority

and the detenu on the subject of their rival contentions in this case.

That imaginary ~onversation may be reproduced, at least f~r the

merit

of its novelty :

'

"(The detaining' authority and t:he detenu come face to

face.) · • ,

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Detaining authority: (After reading -0ut Ground N:o. I to · H

the detenu) : You had made· that objectionable speech.

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SUPREME COURT REPORTS [1984) 2 S,.C.R.

Detenu : ~. Sir, you ~eem to have been wrongly informed.

I did not deliver any speech, provocative

or other­

wise, ill a Shaheedi Conference at any such

. time, date or place known

as 'Nihang Chhowni'

at Baba Baka!, District Amritsar,

before· a Sikh

gathering of 2000/2200, as read out by you from

ground No.· I. · ·

Detaining·authority : (Being cock-sure qf its facts, takes out

the. <'.:.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 ihat 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 scru­

tiny, says somewhat wryly) : Yes, you are right.

The vital data which

finds a mention in ground No.

I

is missing from

the supporting materail. (Re­

gaining quickly-his repose, tlie detaining autho­

rity continues): Never mind if the given vital faets

are missing from the supporting material. The

supporting material

at least reveals that

yoµ did

utter the objectionable words somewhere, some­

time, on some date and before some ,persons.

Detenu Sir, but that was not the speech on which you

we.re going to .act. You were going to take action"

against me on the basis of the speech mentioned

in Gri:mnd No. I. ·

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 atitho-

. rity, serves' the order of detention upon the

deteliu, containing two grounds of detention. ·

Simultaneously, the detaining authority supplies

·the supporting material to tile detenu.")

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PUNJAB ~. J.S, TALWANDI ( Chandrach¥d, C.J.) . 57

We must mention in order to put the record straight and in fair-

. ness to the learned Judge, that he has narrated this c.onversation 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,

witho.ut adding anythiµg 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

questi0ns and answers which sug­

gested themselves to him are,. in a sense, tlie heart of the ·matter and,

in any case, constitute the esseµce of his judgment.

-With respect to the learned Judge, the basic error of his judg-

. ment

lies in an easy,. unexamined assumption which 'he has made

on a significant aspect

pf the matter. The detenu reminded the

detaining athority that the

C.I.D.

r~port did not refer to any speech

made by him "in a Shaheedi Conference at a given time, on a g\ven

· date, at a given place at Baba Bakala .and before a Sikh, gathering

numbering 2000/2200".' The detaining author[ty could have not

p)nibly replied to that question by saying merely that the detenu was

right. The detenu was right only formally· or technically. That

is b~cause, the C.I.D. report was supplied to hirri alnog with the grounds

of dJtention with the axpress ·stipulation that it formed "the )Jase of

the. grouiids of detention". The grounds mention every one of

the details which need have been mentioned. The C.I.D. report was

· furnished to the detenue as forming the source of information leading

to the conclusion that he had made a speech which necessitated hi~

detention in the interests of public order. In the circumstances,

the grounds and .the material· furnished to the detenu have ~o .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 unfamiiarity 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 inter-

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for~er being the base of the latter. .The detaining autho- G

rity. should have explained to the detenu that though the particulars

supplied to Wm 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 H

contained the necessary· facts with full det~ils. The dialogue should .

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58 SUPREME COURT REFORTS [1984),2 S.C.R'

have c~ded there and the curtain tung down. Indeed, the, dialguc,

though carofuJly improvised by the learned Judge, assumes what is to

be decided, namely, whether the particulars furnished tp tbe, dett:nu

suffer. from the infirmity alleged•.

N~vertheless, we will examine independently the argument of

the respondent_ th~! he coul> 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' consititlient of the grounds

served upon him.

His grievance is.that t.he C.I.D. 'report of his speech

does not

mention that : (!) the Conference was held on July 8, !'983;

(2) it was held at Nihang Chhowani; (3) it was held between the hour~

of u: AM. and 4.45. P.M. (4) it was a "S)iaheedi Conference"; (5)

them was a gathering of 2000 to 2200 persons at the Conference;

and that,

(6) the speech made by him

referred to an ~ncounter at

Baba Bakala and Tarn Taran.

Arti_cle 22 (5) of the Constitution, around which' the argument

of the respondent revolves, reads thus

"When any person is detaine4 ill ·punuance of an order

,made under any 'raw providng for p;eventive detention, the

.. authority making the order shall, as soon as may be,

communicate to such pei;son-the grounds on which the order

has been· made and shall afford him the earliest opportunity

+ ol' m1king a. representation ~gains! the order."

r , .

This Article has come up for consideration before .this Court

in a ·large number of cases. One of the earliesi°judgments of this

Court on the interpretation

of this Article

is reported in. Dr. Ram­

krishna Bhardwaj v. ·The Sfate of Delhi, (ll in which Patan)ali Sastri,

C.J. observed that under Article 22 (5) of the Constitution, the detrnu

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,• is a Judgment.of a

four Judge-Bench of this Court in a cas~ which arose under the Main-

,. ·. ,

(1) [1953] S.C.R. 708 •

(2) [1975] 2 S.C.K. 832, 838, 840.

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tenance of Internal' Security '!'\ct, 1971. One of us .. Bbag\ali, J., · A '·

who spoke for the Court, surveyed the decisions bearing on the ques-·

ticin of the obligation of the detaining authoirty and explaind the

nature

of that obligation

thus' :· ·

"The basic facts and material particulars, therefore, -

which are the foundation of the order of detention, will also B

be coverei! by 'grounds' within the contemplation of article

22 (5) and sectiop 8 and are Tequired to be communicated to

the detenu unless their disclosure is considered by the autho.

rity to be against the public inter~st. This bas ahvays been

the view consistently taken by t!iis Court in a series ·of deci-

sions.'' C.

In Mohammad Yo~suf Ratherv. The State oj Jammu & Kashmir,(ll

Chinnappa Raddy, J., in a concurring judgment, deah with t.he im-

-'. plications of Artie](> 22 (5) of the Constitution thus :

"' .

..

"The extent and the content of Article 22 (5) h~ve been

the sullject matter of repeated pronouncements by thi1; Court

.(Vide State of Bombay v. Atmaram (2), Dr. Ramkrishna

Bhardwaj

v. State of Delhi('),

Shibbanlal Saxena v. State

of Uttar Pradesh (3) Dwarkadas Bhatia v. Stille of Jammu &

Kashmir (

4

). The interpretation of Article 22; consistently

ac!opted by this Court, is, parhaps, 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 iI1formed,

as soon as may be, of the grounds on· which the order of

detention

is based,

that is, the grounds which led to th~ sub­

jective 8atisfactioii of the detaining authority and (2) ·to be

.. afforded the earliest opportunity of making a representatfon

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." ·

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.In Khudiram JJas v. The State of We.-t Bengali" it was observed G

-that. these two safeguards 'iare the barest minimum which must be

' . . . . .

(1) [1980] 1 $.C.R. 258, 268; 269.

(2) [195tJ s.c.R. .. 161.

(3) J1954] S.C.R. 418.

( 4)

[1956]

$.C.R. 948.

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. •;60. SUPR_EME COURT REPORTS [19'.84] 2 s.c.R.: .

· observed before an executive authorij:y can be permitted to preven·

,tively detain a persbn and thereby drown his right of personal lib~rty

in tho nanie of public· good and social security". ,

The q[1estion which

we

have to consider in the light of these

decisions iS whether sufficient particulars of the first ground of deten­

tion were furnished to the respondent so as to enable him to exerci'e

effectively his constitutional

right of making a representation

against

.the order of Jetenlion. The obligation which rests on the detaining

authority in.this beh~lf admits. no exception and its rigour cannot

·be relaxed under any circumstances.

Having given our anxious consideration to this questc'n~ it

seems to us impossible to accept the view of the High Ccurt that

sufficient particulars

of the first ground of detention were not

furnift.ed

to the detenu so .as to enable him to make an effective representaiion

to tho detaining authority, that is to say, a representation 'll'hich en

.being ·accepted may give relief to him. This is not a case in which

the groun\l of d'etention contains a bare or bald statement of the

con<;lusion to which the detaining authority had come, namely, !hat

it

was necessary to pass the order of detention in order to

preW,nt the

detenu from acting in a manner prejudicial to the interests

of pub] ic

·

order. The first ground of detention with which we are concerned

in this appeal, mentions ·each and every one of the material particu­

lars which the respondent was entitled to know in order to te able to

make a full and' effective representation against the

orci er of detenticn.

That

gr01!nd mentions the place, date.and time of the alleg<d rr.eeti1ig.

describes the occasion on which tl1e meeting \'as held, that is, the

'Shaheedi Conference'.

It mentions the approximate number of

persons

who were present at the meeting. Finally, it mentici:s 'll'ilh

particularity the various statements made by the respondent in his

speech.. These particulars mentioned in the grcur:ds of detention

comprise tlie entire gamut of facts which it was necessary fer the res­

.pondent to know in order to make a well~informed representaticn.

The inadequacies from Which the supplementary particulars furnisl:rd

to tile respo~dent 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 N~. 1

· because of the inadequacy of data in the partieulars supplied to him,

has therefore· to be r_ejected.

However, w~ are somewhat surprised that in a matter of this nature,

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PUNJAB v. J.S. TALWANDI (Chandrachud, C.J.) 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.LD. report o( which an extract. was supplied to the respcndent

by way of particulars; The original version contains almost evEry

one of t)le material details pertaining to the meeting which are men­

tioned in ground No. 1 The detaining authority needlessly applied

his scissors excising the data which mentioned the date, tH place,

the time and the occasion

of the meeting. It is this lack of thpught-

fulness on

the part of the detaining authority which furnished to. the

respondent the semblance of ~n argument. This Court has observed

in numerous cases that, while passing orders of detenticn, great care

must

be brought to bear on their task by the detaining authorities:

Preventive detention

is a necessary evil but

essenti~lly an evil: )herc­

fore, deprivation of personal Jibhty, if at all, has to be on the strict·

terms ~f the Constitution. Nothing less: We will utter the oft-

given warning

yet once more in the hope

that the voice of reason will

be heard.

Shri Hardev Singh contended, in the altematiVe, that the order

of detention suffers from a total non-application of mind because,

that order could not have

been pass.ed

on the basis of 1!1e C.J.D. report

. wnich docs not refer to any cif the facts which are mentioned in .the

order of detention. It is und.oubtedly true tliat the case ·of the

appellants

is that the order of deiention

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 couneel

overlooks that what was furnished to the respondent was an extract

from the C.J.D. report and not the w)10le of it. However, that has

not caused any prejudice to the respondent since the .grounds. and

the particulars

we.re served upon him simultaneously and

ground

No. I mentions every concejvable detail whicl) it was necessary hJ

mention in order to enable the respondent to make a proper represen-

tation 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

incorpo'rated in

ground No. L ·It is therefore not .possible to accept ihc ·argument

that the order

of detention is bad because the detaining authority

did noi

apply its mind to the· question as to whether there was material

on the basis of

which the respondent could be detained.

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It was further argued by the .]earned counsel that tbe detaining H.

authority should have disclosed the evidence on the basis of which , .

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SUPREME COURT .REPORTS _ [1984] 2 S.C.R.

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,_ · . ·

foBeni Madhob Shaw v. ,The State of West liengal,'" .it was argued

on behalf

of the detenu that the details of the activities attributed to

him were

npt disclosed to him, as ·a resul~ of which his ·right to make

.a repr.isentation to the Government was seriously prejudiced. It

was hold by fais Court tliat since· the activities forming the grounds ;f

· d:itenion woro disclosed to t[1e .detenu in clear terms and since such

di~closure furnished adequate information to the detenu to enable

hiin to make an elfectiv,e representation against his detention, the

lluQ-disclosure of sources of information or the exact words of the

. information which formed the foundation of the order at detention

could not be complained o(

In Har las 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 kMw the evidence nor

the-source of the information : What must be furnished to hi~ are

the grounds

of detention and

th? particulars which would enable

him to make out a case,

if he can, for the consideration of the detaining

authority. .

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In Vakil Singh v.' State of Jammu and Kashinir,'Zl it was held

that since the basic facts, as distinguished from f~ctual details were

in~orporat-od in the material whi~h was suppiied to the detenu, nothing

more

was required to

be .fotimated to .him in order to enable him to

make an effective representation. ·

These cases show that the detenu is not entitled to be infor1'Jed

of the sou•·ce of information received against him or the evidence

which

may have been

colle~tcd against him_as, for example, the evi<lence ·

corroborating that the report of the C.I.D. is true and correct. His

right-is to receive every material partici1lar without which a fo\l and

(!) AIR 1973 SC .2455.

(2) [19741 I S.C.R~ 281,' 288'

(3) AIR 1974 2337, 2341. ·

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}'UNJAB v. J.S. TALWANDI (Chandrachud, C.J.). 63

· effective representation canno( be made. If the order of detention

refers to or ·tel~es upon any document, statement or other material,

copies thereof have, of course, to be supplied to the detenu ·as 4eld

by this Court in

lchhu.Devi Choraria

v. Union of lndia.lll 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

extra9t was furnished· to the· respondent,

was a sup~rfluous '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 conteniion that the entire

·miterial. which was before the detaining authority, including the

evidence gathered

by him, must be

furnished to the detenu :

"But if the grounds of detention ar.e not communicated

to him how can

he make an

effective representation ? The

opportunity of making a representation would l:J~ ren\!ered

illusory, The communication of the grounds' of detention

is

1

therefore, also int\mded to subservc the purpose of enabling

the detcnu to make U)l effec\ive 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 obvi.ous that the 'grounds' mean

alt the . basic

facts and materials which have been taken into account by

the detaining uuthority . 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 ,/,as. collected by !he detaining authority must also

be furnished to the detenu. As the very same paragraph of ·th~

judgment at page 839 of the report shows, what was meant was that

the basic facfs and th.c material particulars which form.the foundation

of the order of detention rriust 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 ~i.th 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 Secre­

tary in the Honie Department, of the ·Government of Punjab, and

(1) [1981] 1 S.C.R. 640, 6~0. ,

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64·· . (1984] 2 S.C.R. . .

SUPREME COURT REPORTS

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.

Howewr, 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 f.ats before the

CoiJrt 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

(Homo), who verified tlie 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

expl~natioh.which he gave for not doing so was found to be

unsatisfactory. Following an earlier judgment in

Naranjan

Singh

v .. State of Madhya Pradesh,2 it was held by this Cou,rt that, in ans~er

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 ·~onformity not only. with the m;rndatory provisions

of the Act under which the order of detentio·n is passed but is also

in accord with the requirements implicit in Article 22(5)

of the

Con-'

stituti<in. Sarkaria, Jobserved. on behalf of the Court :

"Since the Court is precluded from testing the subjective

satisfaction

of the detaining authority by.objective standards,

J·

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 ,;,ho passed the order.

of detentiori under scctioi1 3, cannot be furnished, the counte~ ..

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 bnsiness framed by the

Goverrior under Article

166 of the Constitution to pass

orders' on behalf

of the Government

·in such matt.ers."

H (I) [t974J 3. s.c.R: 25s, 262.

(2) AIR 1972 SC 2215.

..._.

. PUNJAB v~ 1.S. TALWANDI (Chandrachud, C.J.).. 65.

. . After reviewing· certain· other decisions, the Court held .that

the failure to furnish tlie ·counter-affidavit of the District Magistrate

. who had passed the order of detention, was. an hnpropriety though

in most

of the cases it nray. not be of

niucli consequence, especially

jf there was no allegation of malafides 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 tqjs case too, there are no allegations of.ma/a 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 11gain the importante 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 todtthin to draw and' even more

so to judge. Conceivably, there can be cases. in which such impr'o;

priety 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 cbutenq~d that the respondent

was unable to give proper instructio1'!' to his counsel when the matter

was ho;ard by ·the Advisory Soard. Counsel says that the respondent . .

was transferred from place to place· an.d ultimately, he was produced .

before the Advisory 'Board an hour or so· before.the commencement

of proceedings before the Board. Thai left no time for hfm to instruct

his counsel.

We do not see any substance in this. grievance.

·The

respondent was .represented by an. advocate.before the Advisory

'Bo;1rd. The learned advocate ·argued the case· of the respondent .

along with the cases

of two

other· d~tenus. It does not appear that

any grievance was made by him that he was not able to 'obtain ioistruc­

tions from the respondent so as to be· able to represent bis case effec­

tively before the Advis.ory Board.

For these reasons, we allow the appeal and set a·side the judgment

of the High Court A• desired by counsel for the respondent, we

ramand the· matter to the High Court for disposal of the remaining

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.coiitentioris raised by the respondent in his Writ Petition. · G

We would like to take this oppqitunity to point out that' serious

· diffiJnlties arise· on account of the practice increasingly adopted by

the High Courts,

of yronouncing the.

final order without a reasoned

· judgment. It is desirable that the final order which the If4gh Court

inte.nds to pass· sh!iuld not be announced until a reasoned judgment

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"66 SUPREME COUl\T REPORTS [!984] 2 S.C.R.

is. ready for prorionncement. Suppose, fot examnle, that a final ,

order without a reasoned judgment is announced by the High Court

that a hous~ 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 'uncons­

titutional or,

as in the 1nstant case, that a detenu be

released frcm

detention. Ifthe 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 lo be

implemented. The result inevitably

is that the operaticn cf the

order

passed by. the High Court has. to be stayed pending delivery of the

reasoned judgment. • ·

It may b~ thought that such orders are passed by this Court

. and therefore tl)ere is no reason· why the High Courts should not ·'

. do the same. ·We would like to point out r~spectfully that the orders

passed by this Court are final and no appeal lies against them. The

Supreme·Courtis the fin1l 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 groiv out.of its present infancy. . . .

•

.S.R.

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Appeal allowed qnd

Case remanded to the

High Court

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