STATE OF PUNJAB versus JAGDEV SINGH TALWANDI

STATE OF PUNJAB

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

l. · .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" ? .

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'E.LD : ! :J. -While passing orders of detaining. great care JU~ st be brought t o ear .on their task by . the detaining authorities. , • Prevell~ive d!tention is .a·

PUNJAB V. J.S. ;TALWANDI

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 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-BJ2. 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 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 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 Uttar PradesJ,, of BomQa~·v. {1954] Atmaram, SCR 418; [_1951].S.C.R. 0Dwarkadas ·Bhatta·v. State 157; shibbanlal ·Saxena of Jammu & v. KiJshn:ir. State of· [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. 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·

[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 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 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 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 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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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 Writ Petition . (No. 463 of 1983) in the High Court .to challenge his transfer and detention in 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 Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8-7-1983 at place kn<>wn as 'Nihang Chhowaui' at Baba Bakala, Dist-rict Amritsar, delivered provocative speech to .Sikh gathering comprising about 2000/2200 Persons wherein you made 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 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 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 Government parallel. to the ~entraf Government and that you are in position to form such Govern-ment.· You further exhorted that the establishment < .of Khalsa Raaj wasthe only solution to the problems. You ~lso made suggestion that . the Govern'meri!

will not accept aqy demand dnless it was compelled by force to do so. This statement was also pub-lished ·.in the various newspapers. 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, 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 :

"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 · . l, is to save the The M;rcha, which Js l~unched by Akali Dal, is to s~ve fhc Sikh appearance. The awards have been given to policl:, have · they wpn any war? Such big attack· upon the Nihan~s was_

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ou pre-planned programme: I say .if tlrcy have killed 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 judicial enquiry made, it becomes meaningless. Nothing comes out of them. Now the judicial power has been given to Executive Officers . . They may kill any-body and they complete the enquiry and fill the file.''. ·

One of the grounds on which the order 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 re-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 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 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 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.) · • ,

·' " Detaining authority: (After reading -0ut Ground N:o. I to · the detenu) : You had made· that objectionable speech.

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 manner which is slightly different in so far as the form, but not the substance; is concerned. He has narrated the conversation in running form. · We have reproduced it like dialogue in 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 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 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 Shaheedi Conference at given time, on g\ven · date, at given place at Baba Bakala .and before 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 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 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-Jinked, the for~er being the base of the latter. .The detaining autho-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 contained the necessary· facts with full det~ils. The dialogue should .

The dialogue should .

[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 "S)iaheedi Conference"; (5) them was 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 r , ~gains! the order." .

This Article has come up for consideration before .this Court in ·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 representation which, on 'being considered, may give relief to him".

Khudiram-Das v. The State of West Bengal,• is Judgment.of four Judge-Bench of this Court in cas~ which arose under the Main-,. ·. , (1) [1953] S.C.R. 708 • A"'r' (2) [1975] 2 S.C.K. 832, 838, 840.

tenance of Internal' Security '!'\ct, 1971. One of us .. Bbag\\ali, J., 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 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 series ·of deci-sions.''

In Mohammad Yo~suf Ratherv. The State oj Jammu & Kashmir,(ll Chinnappa Raddy, J., in 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 '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 representatfon against the order of detention, that· is, to be furnished with sufficient particulars to enable him to make representation which on being considered may obtain, relief to him." ·

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

. •;60.

SUPR_EME COURT REPORTS

· observed before an executive authorij:y can be permitted to preven· ,tively detain 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 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, representation 'll'hich en .being ·accepted may give relief to him. This is not case in which the groun\l of d'etention contains 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 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 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 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 matter of this nature,

the detaining authority should have adopted 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 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 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 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.

It was further argued by the .]earned counsel that tbe detaining authority should have disclosed the evidence on the basis of which , .

• 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 case, if he can, for the consideration of the detaining -authority. .

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 fo\l and

(!) AIR 1973 SC .2455. (2) [19741 I S.C.R~ 281,' 288'

(3) AIR 1974 2337, 2341. ·

· 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 truncated extra9t was furnished· to the· respondent, was 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 representation would l:J~ ren\!ered illusory, The communication of the grounds' of detention is1 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

. (1984] . 2 S.C.R. .

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 routine nature, if indeed . .there ·are any matters of routine nature in the field of detention, .. counter-affidavit may be sworn by 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 Rule issued in 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, 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."

(I) [t974J 3. s.c.R: 25s, 262. (2) AIR 1972 SC 2215.

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

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 reasoned · judgment. It is desirable that the final order which the If4gh Court inte.nds to pass· sh!iuld not be announced until reasoned judgment

"66 SUPREME COUl\T REPORTS

is. ready for prorionncement. Suppose, fot examnle, that final , order without reasoned judgment is announced by the High Court that hous~ shall be demolished, or that the custody of child shall be handed over to one parent as against the order, or that person accused of serious charge is acquitted, or that statute is 'uncons-titutional or, as in the 1nstant case, that 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 ·special leave petition in this Court against the order passed by the High Court. That places this "court, in . 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 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. . .

Appeal allowed qnd Case remanded to the High Court •