State Of Punjab v. Jagdev Singh Talwandi

Judgment

CRIMINAL APPEALATE JURISDICTION :Criminal Appeal No. 692 of 1983.

From the Judgment and Order dated 29th Novémber, 1983 of the Punjab & Haryana High Court at Chandigarh in Criminal! ‘ Writ Petition No. 516 of 1983. .

XK, Parasaran, Attorney Genl, of India, ‘Bhagwant Singh,

Advocate Genera! (Punjab), Gurmukh Singh; Addl Ady. Gent. of”

“Punjab, D.S. Brar, Asstt Adv. General, G.S. Mann, Deputy Adv.

»

General, R.D. Aggarwal, Govt. Advocate, Miss 4 Subhashini and -

S.K. Bagga for the Appellants.

Hardev Singh, G.S. Grewal, N. S: Das Behl; R.S. Sodhi “and IS. Sandhawalia, for the Respondent.

The Judgment of the Court was delivered by

Cuanpracnup; C. J. This is an appeal by special leave

_ against the judgment dated November, 29 1983 of a learned Single Judge of the High Court of Punjab and Haryana in Criminal Writ _

‘Petition No. 516 of 1983: That Writ Petition was filed ty the respondent, Shri Jagdev Singh Talwandi, to challenge an order of detention passed by the District Magistrate, Ludhiana, on October 3,

11984] 2 s.cR. ”

oe a o

“4

PUNIAB ¥. 5.8. TALWANDI (Chandrachud, CJ.) 33

1983 whereby the respandent was detained under section 3 (3) read’

with section 3 (2) of the National Security Act, 1980.

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

“tention on the night between October 3 and 4, 1983. He was first lodged in the Central Jail, Patiala and from there -he was taken to Ambala, Baroda and Fathegarh (U.P.). He filed a Writ Petition

- (No. 463 of 1983) in the High Court to challenge his transfer and deteation in a place far away from -Ambala. -He withdrew that. petition on an assurance by the Government that he will be sent back to Ambala, which the Government did on October 28.

The grounds of detention were served on the respondent on

‘October 6, 1983. Those grounds show that the petitioner was detained on the basis of two speeches allegedly made by him : cne™ oa July 8, 1983 at Nihang Chhowani, Baba Bakala, District Amritsar

. and the other on September -20, 1983 at Gurdwara Manji Sahib,

Amritsar. The grounds furnished to- the petitioner read thus } }

(1) That you in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8-7-1983 at a place known as ‘Nihang Chhowani’ at Baba Bakala, Disttrict Amtitsar, delivered a provocative speech to a Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference tothe incident — dated 2-7-1983 of encounters between Nihangs and police at Baba Bakala and Taran Taran and ‘stressed’ that in order to take revenge Sikhs would kill their (Police) four persons in lieu of the two Nihangs who had been killed ‘in the said encounters. That while ‘addressing a conference convened by the AISSF (Ali India Sikh Students Federation) on

+ 20-9-1983 at Gurdwara Manji Sahib at Amritsar and attended by about 7000/8000 Sikh students, you. _ made a provocative,speech wherein you said that all efforts made for the success of the Akali Morcha having failed, it was still time to establish in Punjab a Government parallel to the Central Government and that you are ina position to form such a Govern-

. ment. You further exhorted thattheestablishment .

<« of Khalsa Raaj was'the only solution to the problems. . You also made a suggestion that the Government

— i SUPREME COURT REPORTS ._—[1984] 2s.cr.

will not accept any demand Unless it was compelled by force.to do so. This statement was also published. in the various newspapers. A case F.LR. No. 295. -dated 27-9-1983 under section, 124-A ‘Indian Penal Code, and section .13 of the Unlawful Activities (Prevention) Act, 1967, was registered at Police Station ‘E’ Division, ‘Amritsar,. which is ~ under investigation.”” The detaining authority stated in. the last paragraph of the. detention order that the respondent was being supplied the grounds . _ of detention. in Punjabi (Gurmukhi script) together with an English translation thereof and the “‘sypporting material forming the ‘base ofthe grounds of detention”. The “supporting ‘material, by which is. meant particulars of the. grounds of detention, was supplied to c the Tespondent 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.LD. branch of the. Punjab Police. The

. , particulars, of which an E nglish translation was produced in the High - Court at Exe 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 were, killed, because no rollcall is taken of the Sikhs; how many came and how many went. ‘

Further said that in Punjab hundreds of innocent: Sikhs have been made the target of bullets." The Government has | ' Seen that the Sikhs go away after paying homage to- thé ‘ ‘Martyrs. Now we will have to decide as to what steps should ° be taken. The beloved army .of Guru (Nihangs) have pio- . 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 will slowly finish- us.

‘The new Inspector-General of Police Mr. Bhinder, has Stated that there are no extermists in-Darbazr Sahib. Further ' said that Congress wants to finish self respect among you.

cha, which is launched by Akali D — . |, is to save the The Morcha, which is launched by Akali Dal, is to save the Sikh appearance. The awards have been given to policé, have

‘ they won any war? Such a big attack upon the ‘Nihangs was eee ee et ee teed wae ge

' device.

+

PUNJAB Y. J.S. TALWANDI (Chandrachud, CI.) : 35 on a pre-planned programme. I say if they have killed our two men, then you should kill four. If they come to’ kill me like this, then I will die after killing them. I will never go back. Further said ‘that if we get a judicial enquiry ~ made, it becomes meaningless. Nothing comes out of them. Now the judicial power has been given to Executive Officers.

- They may kill any- body and they complete the enquiry and fill - the file.” .

One of the grounds on which the order of detention was chal-

’ fenged in the High Court was that the State Government had failed”

to » discharge its obligation under Article 22 (5) of the Constitution by denying to.the respondent an effective opportunity. to make a Te- - presentation to ihe Advisory Board-against the order of detention.

On being-asked by the learned Judge “to be more specific’’, counsel.

_- for the respondent stated in the High Court that the State Govern- ment had not supplied to the respondent the supporting material on which Ground No. 1. of the grounds ‘of detention was based. Shri:

Hardev Singh, who appears’ on behalf of the respondent, adopted that contention by clarifying that the case of the respondent is that

_ the relevant facts: stated in the Ist ground of detention are totally absent from the supporting material supplied to him and on the basis of that material. The learned counsel urged, that the order of detention was bad eithér because the detaining authority

‘did not apply its mind to the, material before it or, in the alternative, - because there’ was some.other material on the basis of which the detention order was passed and that material was not supplied to the respondent.

x

For the purpose of focussing attention on the true nature of the respandent’s contention and the prejudice said to have been caus- .

ed to him, the learned Judge of the High Court resorted to an ingenious | and the detenu on the subject of their tival contentions in this case.

That imaginary conversation may be reproduced, at least for the merit of its novelty :

“(The detaining authotity and the detenu come face to

\ face a . .

“Detaining authority: (After reading out Ground No. 1 to’ ‘the detenu) : You had made’ that objectionable speech.

} , therefore, . "9 reasonable person could have possibly passed the detention order -

He coined a conversation between the detaining authority © oo:

Detenu

SUPREME COURTREPORTS - _—«[1984] 2s.c.r.

| Sir, you seem to have been wrongly informed.

I did not deliver any speech, provocative or other- wise, in a Shaheedi Conference at any such . time, date or place known as ‘Nihang Chhowni’

at Baba Bakal, District Amritsar, before’ a Sikh gathering of 2000/2200, as read out by you from ground No. 1.

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

‘ °

’ carefully, as ground No. 1 is based on that report.“

Detenu' + the.€.L.D. report and puts-it in the hands of the detenu.).: Go through this C.D. report

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

Detent .

detenu’s hand and subjecting’it to a close sérutiny, says somewhat wryly) : Yes, you are right. The vital data which finds a mention in ground No. 1 is missing from the supporting materail. (Regaining quickly-his repose, the detaining authority continues): Never mind if the given vital facts are missing from the supporting material. The supporting material at least reveals that you did utter the objectionable words somewhere, sometime, on some date and before some persons. -

: Sit, but that was not the speech on which you, were going to.act. You were going to take action against me on the basis of the Speech mentioned in Ground No. 1.

-Detaining ¢ authority * “Very well. (So’ saying, the detaining

’ detefiu, containing two grounds of detention. © authority orders-the detention of the detenu on two grounds by adding one more ground on the basis of another speech. The detaining autho-

_ ity, serves’ the order of detention upon the

Simultaneously, the detaining authority supplies ‘the supporting: material to the detenu. ”)

- 4

+ PUNJAB ¥, J.8, TALWANDI (Chandrachyd, C.J.) . 37

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

_ ness to the learned Judge, that 'he has narrated this conversation in a manner which is slightly different in so far as the form, but not the substance; is concerned. He has narrated the conversation in a running form. We have reproduced it like a dialogue in a play, without adding anything of our own. Indeed, we have taken care not to make any changes at all in the fictional conversation imagined by the learned Judge because, the questions and answers which sug-

_ gested themselves to him aré, ina sense, the heart of the matter and, in any case, constitute the essence of his judgment.

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

. ment lies in an easy,- unexamined assumption which he has made on a Significant aspect of the matter. The detenu reminded the detaining athority that the C.LD. report did not refer to any speech made by him “‘in a Shaheedi Conference at a given time, on a given ‘date, at a given place at Baba Bakala and before a Sikh, gathering numbering 2000/2200”. The: detaining authority could have not possibly replied to that question by saying merely that the detenu was right. The detenu was right only formally or technically. That is bacause, the C.I.D. report was supplied to him alnog with the grounds of detention with the express ‘stipulation that it formed “‘the base of

_ the grounds of detention”. The grounds mention every one of _ the details which need have been mentioned. The C.I.D. report was ’ furnished to the detenue as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in tho interests of public order. In the circumstances, the grounds and the material furnished to the detenu have to be read together as’ is the material in the form of the C.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

. unfamilarity with the true legal position of the part on the detaining authority. Not only that, but it shows that the detaining authority forgot that the particulars and the grounds were expressed to be interlinked, the former being the base of the latter. The detaining authority. should have explained to the detenu that though the particulars supplied to him did not mention those various details, the particulars were supplied to him along with the grounds, that it.was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together.and that the grounds contained the necessary facts with full details. The dialogue should |

B.

D-

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}

58 . _ |. SUPREME COURT REFORTS- ey [1984].2 s.c.r° have ended there and the curtain tung down. Indeed, the, dialgue, though carefully improvised by the learned Judge, assumes ‘what is to ‘be decided, namely, whether the particulars furnished to the detenu suffer .from the infirmity alleged. .

_ Nevertheless, we will examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the C.I.D. report of the speech alleged to have been.

. made by himat the Shaheedi Conference, did not contain the material particulars which formed an important consitituent of the grounds served upon him. His grievance is-that the C.D. report of his speech ‘does not méntion that + (1) the Conference was held on July 8, 1983;

' (2) it was held at Nihang Chhowani; (3) it was held between the hours of 11: A.M. and 4.45 P.M. (4) it was a ‘‘Shaheedi Conference”; (5) there was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an encounter at Baba Bakala and Tarn Taran.

r

Article 22 (5) of the Constitution, around which the argument of the respondent revolves, reads thus :

“When any person is detained in, “pursuance of an order made under any law providng 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 >t making a Tepresentation against the order.”

This Article has c come up for consideration before this Court in a large number of cases. One of the earliest. judgments of this Court on the interpretation of this Article is reported in. Dr. Ramkrishna Bhardwaj vy. The State of Delhi, in which Patanjali ‘Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detenu has the wight 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 Bengalis a judgment of a four Judge-Bench of this Court in a case which arose under the Main-

* ~ #

() [1953] SCR 708 °° s - AY

~ (2) [1975] 2 S.C.R. 832, 838, 840. _ e ¢

PUNJAB y. J.8. TALWANDI (Chandrachud, C.J.) .. 99 tenance of Internal I secutity wAct, 1971. One of us, Bhagwati, J., ‘who spoke for the Court, surveyed the decisions bearing on the ques-- tion of the obligation of the detaining authoirty and explained the nature of that obligation thus :

“The basic facts and material particulars, therefore, _ which aré the foundation of the order of detention, willalso _ be covered by ‘grounds’ within the contemplation of article 22(5)and section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public’interest. This has always been

‘the view consistently taken by this Court in a series - -of decisions.”

"In Mohammad Yousuf Rather y. The State of Jammu & Kashmir, a)

Chinnappa Raddy, J., in a concurring judgment, dealt with the im-

_ plications of Article 22 (5) of the Constitution thus :

“The extent and the content of Article 22 (5) have been the subject matter of repeated pronouncements by this Court (Vide State of Bombay v. Atmaram (2), Dr. Ramkrishna | Bhardwaj v. State of Delhi (*), Shibbanlal Saxena v. State of Uttar Pradesh (8) Dwarkadas Bhatia v. State of Jammu &

Kashmir (*). The interpretation of Article 22; consistently adopted by this Court, is, pathaps, one .of the outstanding: contributions of the Court in the cause of Human Rights. _ The law is now well settled that a detenu has two rights. - under Article 22 (5) of the Constitution : : (1) To be informed, as soon as may bé, of the grounds on‘which the order of detention is based, that is, the grounds which led to thé sub- _ jective satisfaction of the detaining authority and (2) to be -, afforded the earliest opportunity of making a representation against the order of detention, that-is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him.”

~

In Khudiram’ Das v. The State of West Bengal, it was observed.

shat these two safeguards “fare the barest minimum which must be

- (4) [1980] 1 $.C.R. 258, 268;-269. (2) [1951] S.C.R.. 167. (3) [1954] S.C.R. 418.

- _ (4) 11956] SCR. 948,

G .

’

60. : _ SUPREME COURT REPORTS ; —-1984) 28.C.R..

‘ observed before an executive authorigy can be permitted to preven- {ively detain a persbn and thereby drown his ie of personal liberty in the name of public good and social security”.

The question which we have to consider in the light of these decisions is whether sufficient particulars of the first ground of detention were furnished to the respondent so as to enable him to exercise effectively his constitutional right of making a representation against the order of detention. The obligation which rests on the detaining authority i in, this behalf admits no exception and its rigour cannot be relaxed under any circumstances.

Having given our anxious consideration to this questén, it seems to us impossible to accept the view of the High Ccurt that sufficient particulars of the first ground of detention were nct furnished té the detenu so as to enable him to-make an effective representation to the detaining authority, that is to say, a representation which cn being accepted may give reliefto him. Thisis notacasein which the ground of detention contains a bare or bald statement of the conclusion to which the detaining authority had come, namely, that .

it was necessary to pass the order of detention in order to prevent the detenu from acting in a manner prejudicial to the interests of public - order. ‘The first ground of detention with which we are concerned in this appeal, mentions each and every one of the: material particulars which the respondent was entitled to know in order to ke able to make a fulland effective representation against the order of detenticn. That ground mentions the place, date and time of the alleged meeting. describes the occasion’on which the meeting was held,: that ts, the ‘Shaheedi Conference’. It mentions the approximate number of persons who were present at the meeting. Finally, it menticns with particularity the various statements made by the respondent in his speech. - These particulars mentioned in the grcurds of detention comprise | the entire gamut of facts which it was necessary fcr the res- pondent to know in order to make a well-informed representaticn. The inadequacies from- which the supplementary particulars furnisked to the respondent along with ground No..1 suffer, cannot affect that

- .position because; they do not introduce any obscurity in the facts~ stated in that ground or detract from the substance. of the. allegations ‘mentioned in that ground. The argument of the respondent that he could not make an effective representation in behalf of ground No. 1

- because of the inadequacy of data in the particulars supplied to him, has therefore to be rejected.

However, weare somewhat surprised thatina matter of this nature,

PUNJAB Y. J.S. TALWANDI (Chandrachud, CJ.) 6]

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 of which an’ extract was supplied to the respcndent by way of particulars: The original version contains almost every .

one of the material details pertaining to the meeting ‘which are mentioned in ground No.! The detaining authority needlessly applicd

-his scissors excising the data which mentioned the date, thé place, the time and the occasion of the meeting. Itis this Jack of thoughtfulness on the part of the detaining authority which futnished to. the respondent the semblance of an 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 isa necessary evil but essentially an evil. ‘There- fore, deprivation of personal liberty, if at all, has to be on the strict: terms of 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 alternative, that the order

' of detention. suffers from a total non-application of mind because, that order could not have been passed on the basis of the C.I.D. report

- which does not refer to any of the facts which are mentioned in the order of detention. It is undoubtedly true that the case of the”

_ appellants is that the order of detention is founded upon the report - of the C.LD., relating to the speech made by the respondent at the -

Shaheedi Conferénée, But the argument of the learned counsel overlooks that what was furnished to the respondent was an extract from the C.I.D. report and not the whole of it. However, that has not caused any prejudice to the respondent since the grounds. and the particulars were served upon him simultancously and grovhd No. 1 mentions every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention. . Evidently, the. detaining authority had before it the whole of the C.D. report on the basis of which it passed the order of detention. What was omitied yom . “the extract furnished to the respondent was incorporated =i ground No. 1. It is therefore not possible to’ accept the argument :

that the order of detention is bad because the. detainifig authority did not apply its mind to the question as to whether there was material on the basis of which the respondent could be detained.

It was further. argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which c.

oan . . e

62 SUPREME COURT REPORTS . . [1984] 2 s.cr.

‘the order of detention was passed because, in the absence of knowledge 2 | 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 bé furnished - to him, m . In Beni Madhob Shaw v. The State of West Bengal, a) it was argued . on behalf of the detenu that the details of the activities attributed to . him were not disclosed to him, asa result of which his right to make a2 representation to the Government was seriously prejudiced. It was held by this Court that since the activities forming the grounds of .

‘ detenion were disclosed to the detenu in clear terms and since such disclosure furnished adequate information to the-detenu to enable - him to make an effective representation against his detention, the _nog-disclosure of sources of information or the exact words of the information which formed the foundation of the order of detention .

could not be complained off

In Har Jas Dev Singh vy. Staie of Punjab, (2) it was held that the conclusions drawn from the available facts constitute ‘the grounds’ | -and that the ground must be supplied to the detenu, The Court - observed ‘that the detenu is not entitled to know the evidence nor the-source of the information : What must be furnished to him are the grounds of detention and the particulars which would enable ‘him to make out a case, if he c can, for the consideration of the detajning _ authority.

In Vakil Singh v. State of Jammu and Kashmir, it was held fat since the basic facts, as distinguished from factual details were neorporated in the material which was supplied to the detenu,’ nething more was required to be intimated to him 1 in order to enable him to *

’ make an effective representation.

These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence ' corroborating that the report of the C.LD. is true and correct. His right: is to receive every material Particular without which a full and:

re) AIR 1973 SC 2455. (2) [1974] 1 S.C.R: 281, 288: + | (3) AIR 1974 2337, 2341, °° tak

PUNJAB Y. J.8. TALWANDI (Chandrachud, CI). 63

‘effective representation cannot be made. If the order of detention -. refers to or 'telies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu -as held by this Court in Iehhu Devi Choraria v. Union of India. 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.LD.

report, of which a truncated extract was furnished to the respondent, was a sup¢rfiuous exercise in the light of the facts of the instant case.

‘Shri Hardev Sirigh relied upon the following paisage in the — .

judgment'in Khudiram in support of his contention that the entire

‘material which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu :

a °

“But if the grounds of detention are not communicated to him how can he make an effective representation ? The opportunity of making a representation would be rendered .

illusory, The communication of the grounds’ of detention . is, therefore, also intended to subserve the purpose of enabling -

' the detenu ‘to make aneffective representation. If this be the true reason for providing that the grounds on which the

- order of detention is made should be communicated to the detenu, it is obvious that the ‘grounds’ mean all the . basic facts and materials which have been taken into account by the detaining outhority in making the order of detention and on which, therefore, the order of detention is. based.”

These observations ‘cannot be construed as meaning “that the : ‘evidence which was collected by the detaining authority must also be furnished to the detenu. As the very same paragraph of the judgment at page 839 of the report shows, what was meant was that the basic facts and the material particulars which form the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without

‘being apprised: of the same, the detenu cannot possibly make an effective representation. a Shri Hardey Singh found -serious fault with the fact that in answer to the writ petition filed by the respondent i in the High Court, the counter-affidavit was sworn by Shri K.C, Mahajan, Deputy Secre- tary in the Home Department of the Government of Punjab, and —

(1) [1981] 1 S.C.R. 640, 650. ‘

64°. ; a SUPREME COURT REPORTS . 984] 2s.0r..

not by’ the ‘District Magistrate, Ludhiana, who had passed the’ order of detention. We are not prepared to dismiss this submission as of no relevance or importance. In matters of a routine nature, if indeed there are any matters of a routine nature in the field of detention, a counter-affidavit may be sworn by a person who derives his knowledge from the record of the case. However, in sensitive matters of the

‘present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant fats before the Court which the Court is legitimately entitled to know.

In Shaik Hanif v. State of West Bengal} the counter-affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Home), ‘vho verified the correctness: of the averments in his affidavit on the basis of the facts contained in the official records. The District,

Magistrate, who passed the order of detention, did not file his affidavit . and the explanation which he gave for not doing so was found to be"

unsatisfactory, Following an earlier judgment in Naranjan Singh v. State of Madhya Pradesh,2 it was held by this Court that, in answer to a Rule issued in a habeas corpus petition, it is incumbent upon the State to satisfy the Court that the detention of the petitioner is legal and is in ‘conformity not only with the mandatory provisions of the Act under which the order of detention is passed but is also in accord with the requirements implicit in Article 22(5) of the Con-* stitution. Sarkaria, Jobserved on behalf of the Court :

CS “Since the Court is precluded from testing the subjective

; satisfaction of the detaining authority by.objective standards, it is all the more desirable that in response to the Rule Nisi, .

the counter-affidavit on behalf of the State should be sworn to by the District Magistrate. or the authority on whose subjective’ satisfaction the detention order under s.3 was °

. passed. If for. sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order.

of detention under section 3.cannot be furnished, the counter- affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government

Secretariat of submitted it to the Minister or other Officer duly authorised under the rules of business framed by the

Governor under Article 166 of the Constitution to pass orders on behalf of the Government ‘in such matters.”

a) [1974] 3. S.C.R. 258, 262. (2) AIR 1972 SC 2215, -

-

/PUNIAB ¥. 1.8. TALWANDI (Chandrachuid, CJ.) 65 |

After reviewing certain other decisions, the Court held that the failure to furnish the counter-affidavit of the District Magistrate _.Who had passed the order of detention, was.an impropriety though in most of the cases it may: not be of mucli consequence, especially. if there was no allegation of mala fides against the detaining authority. -

In the result, the absence of the affidavit of the District Magistrate was held not to vitiate. the order of detention.

‘In thjs case too, there a are no allegations of mala fides against

' the District Magistrate and so, his failure to file a counter-affidavit — will not vitiate the order of detention. We cannot, however, leave: this subject without emphasising once again the 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 todéthin to draw and’ even more so to judge. Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority 3 in filing

. his own affidavit’ may vitiate the order of detention:

Finally, Shri Hardev Singh has coutended that ‘the respondent

-was unable to give proper instructions to his counsel when the matter was heard by-the Advisory Board. | Counsel says that the respondent was transferred from place to place and ultimately, he was produced .

before the Advisory Board an hour or so before the commencement of proceedings before the Board. That left no time for him to instruct his counsel. We do not see any substance in this grievance. The — respondent was represented by an. advocatexbefore the Advisory

~ Board. The learned advocate argued the case’of the respondent .

along with the cases of two other détenus. It does not appear that any grievance was made by him that he was not able to obtain iastruc- tions from the respondent so as. to be able to represent his case effec. _ tively: before the Advisory Board.

For these reasons, we allow the appeal and set aside the judgment of the High Cotirt. As desired by counsel for the respondent, we remand the matter to the High Court for disposal of the remaining contentions raiséd by the respondent i in his Writ Petition.

We would like to take this opportunity to point out ‘that serious

‘difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned

‘judgment. It is desirable that the final ordet which the High Court intends to pass’sh3uld not be announced until a reasoned judgment a .

t

,

65 SUPREME COURT REPORTS [1984] 2 s.c.r.- is ready for pronouncement. Suppose, fot examnle, that a final order without a reasoned judgrhent is announced by the High Court that a house shall be demolished, or that the custody of a child shall

- be handed over to one parent as against the order, or that a person ~ accused of a serious charge is acquitted, or that a statute is uncons- titutional or, as in the instant case, that a detenu be released from

_ 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 léave petition in this Court against

- the order passed by the High Court. That places this Court,in a . predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be .

impleniented. The result inevitably is that the operation cf the order passed by. the High Court nee to be ® stayed pending delivery of the.

reasoned judgment,

It may be thought that such orders are passed by this Court and therefore there is no reason’ why the High Courts should not - do the same. We would like to point out respectfully that the orders

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

Supreme Courtis the final Court in ‘the hierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High

SR res

Court are,subject to the appellate jurisdiction of this Court under

. Article 136 of the Constitution and other provisions of the concerned © statutes. We thought it necessary to make these observations .in .

order that a practice which is not very desirable and which achieves no, useful purpose may not grow out of its present infancy.

*

Appeal allowed and , ; , Case remanded to the ; a _ oc High Court