1. This petition under S. 491 of the Code of Criminal Procedure has been filed by Ajaib Singh for issue of a writ of habeas corpus for the production of Jarnail Singh of Amristar District before this Court.
(2) According to the allegations in the petition Jarnail Singh, aged 46, was a heart patient and had been confined in the V. J. Hospital, Amritsar, for certain periods in the year 1963 as detailed therein, that he was involved by the Amritsar police in an Arms Act case in which he was acquitted by the Sessions Judge, who, in his judgment dated 15th of May, 1958, came to the conclusion that it appeared that the recovery had been foisted upon Jarnail Singh, that subsequently he refused to be a false witness in a police challan case under S. 325/34, Indian Penal Code, and that for this the Amritsar police was inimically disposed towards him. It is further stated that because of this annoyance of the police he was arrested by Shri Gurbachan Singh Inspector of Police on the 4th of July 1964 at the workshop of Majha Transport Society, Amritsar, of which he is a director without being shown any warrant, that he has not since been produced before any Magistrate and that an application given by the applicant before a Magistrate at Amritsar for getting Jarnail Singh medically examined has also not been complied with.
After getting instruction from his client the learned counsel for the applicant made a statement before me that Jarnail Singh has never been produced before a Magistrate since his arrest. Rule was issued and it has now been detention order issued under rule 30 of the Defence of India Rules directed the detention of Jarnail Singh in order to prevent him from acting in a manner prejudicial to the defence of India and civil defence that Jarnail Singh was arrested in execution of this detention order and a copy of this order was not only shown but given to Jarnail Singh and in token of the same his signatures were obtained on the back of the detention order, and that on that very day the original detention order was sent to the Reviewing Authority under the Rules.
(3) When the case came up for hearing this morning additional grounds were put in purporting to be in reply to the return filed on behalf of the respondents alleging that the detention order was mala fide. One of the main points taken in support of this contention is that in pursuance of the first information report which was registered as far back as 29th of June 1963 under the Arms Act, Opium Act and section 411, Indian Penal Code, against Jarnail Singh, his house in village Bhagtupura, which is at a distance of about six miles from Amritsar, was searched almost at about the same time as he was arrested in Amritsar. No reply could be filed by the other side to these allegations. I, however, instead of adjourning the case heart the learned counsel for the application at length on the assumption that the facts with regard to the search of the house on 4th of July at Bhagtupura are correct.
(4) Two points were urged by the learned counsel. First, that Jarnail Singh had been detained under the Defence of India Rules purely for a collateral purpose of getting information or extorting confession from him with regard to the offences mentioned in the first information report of the year 1963. In support of this contention the only thing urged by him was that the arrest under the Defence of India Rules and the search of the house took place on one and the same date. I, however, feel that this coincidence cannot possibly lead to he inference that the detention of Jarnail Singh under the Defence of India Rules was mere cloak to take him in custody and interrogate him or otherwise to induce him to make a confession in respect of any of the offences under the Arms Act, Opium Act or under section 411, Indian Penal Code. As already indicated the first information report was registered more than a year before the present arrest of Jarnail Singh and if the police wanted to take him into custody for interrogation it had ample powers under the Criminal Procedure Code and could easily have obtained remand from a Magistrate for continuing the investigation.
It has to be borne in mind that the order of detention in this case is dated 30th of June 1964 when the District Magistrate was in possession of some information from which he was satisfied that Jarnail Singh's detention was necessary for the purpose mentioned therein. I am, therefore, definitely of view that there can be no possible connection between the arrest and the search of the house alleged to have been made on the date on which the detention order was actually executed by the City Inspector. In view of the signature of Jarnail Singh on the detention order and the fact that the original was sent to the Reviewing Authority that very day, it could not be denied before me that the order of detention was shown to Jarnail Singh and the allegations made in paragraph 7 of the petition that no such order was shown cannot be accepted.
(5) The second point which was urged and very great vehemence by the learned counsel was that although in view of the proclamation of emergency under Article 359 of the Constitution by the President of India, the fundamental rights guaranteed under Articles 14, 21 and 22 of the Constitution have been suspended and no proceedings can be taken to enforce such rights, yet as he been observed by the Supreme Court in Makhan Singh v. State of Punjab, AIR 1964 SC 381 Courts can go into an allegation of mala fide in such cases of detention. His contention however was that it is not possible for him to show that the order of detention is mala fide until and unless grounds of detention are mentioned in the detention order. In support of this he relied on a judgment of Mr. Justice H. R. Khanna reported in Sohan Singh v. State of Punjab, AIR 1963 Punj 408 and the observations made by the learned Judge at page 410. Now that was a case in which the grounds were given and the learned Judge went on to observe that if there is nexus between the grounds of detention and the objects mentioned in Rule 30 of the Defence of India Rules, the order cannot be scrutinized by the Court. From this the learned counsel wanted to infer the grounds must be given in all cases. The second case by the same learned judge is reported as Amdad Hussain v. State, AIR 1964 Punj 75. Here also the petition was dismissed. In the report the detention order has been reproduced and I find that no reasons had actually been given. Obviously, therefore, the observations of the learned Judge must relate to the fact that the general grounds given in the detention order must be one or more of those which are detailed in Rule 30. After considering these two rulings, Mr. Justice R. P. Khosla in Criminal Misc. Chand Pent. No. 42 of 1964 dated 21-2-1964 (Punj) Labh Chand v. The State, came to a clear finding that it was not necessary to give any grounds or particulars to the detenu in cases where detention had been ordered under the Defence of India Rules and that it was for the detenu to prove the mala fides not with reference to the order of detention but independently.
(6) The learned Assistant Advocate-General appearing on behalf of the State referred to MohanChowdhury v. Chief Commr. Tripura, AIR 1964 SC 173 where the order has been reproduced and is also generally worded reproducing the words in Rule 30. So this point whether the grounds were necessary was not specifically taken and the application was dismissed. The omission of grounds or reasons is so apparent and obvious that the learned Judges of the Supreme Court would have certainly dealt with this matter if there had been any point in it. No doubt, to detain a person by just saying that it was necessary to do so the prevent him from acting prejudicially to the defence of India, without giving any indication in what manner his actions were going to be so prejudicial, is giving very wide and unfettered powers to the executive and does put the liberty of a citizen in jeopardy,but, as was observed by Mr. Justice R. P. Khosla in the case referred to above, in view of the emergency it was apparently considered necessary to arm the executive with such wide and extensive powers. As has been held by the supreme court in Makhan Singh's case, AIR 1964 SC 381 so long as the proclamation of emergency stands fundamental rights are suspended and the Courts cannot interfere in the action taken by the executive. The only remedy open to the petitioner or any person in his position is to make such representation as he may deem fit to the Reviewing Authority, the order of detention being reviewable every six months by the officers appointed in this respect by the State under Rule 30A.
(7) In view of the above, therefore, I feel that Jarnail Singh having been detained under a proper order of detention, the rule must be discharged and I order accordingly. The petition is dismissed.
(8) Petition dismissed.