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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: JAGDEV SINGH TALWANDI

DATE OF JUDGMENT16/12/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. SEN, AMARENDRA NATH (J) MADON, D.P. THAKKAR, M.P. (J)

CITATION:  1984 AIR  444            1984 SCR  (2)  50  1984 SCC  (1) 596        1983 SCALE  (2)942  CITATOR INFO :  F          1985 SC1082  (18)  D          1986 SC2173  (20)

ACT:      A.  Constitution   of  India,   1950,  Article  22  (5) Preventive Detention-Duty  of detaining Authority-Compliance with strict  terms of  the Constitution  is a  must-National Security Act (Act LXV of 1980) section 3.      B. Preventive Detention-National Security Act (Act LXV) of  1980-Section   3  read   with  Article   22(5)  of   the Constitution of  India, 1950-Full details of the prejudicial activities (dated,  time and place) mentioned in the grounds of detention,  but not in the supporting particulars-Whether non-mention  in  the  "supporting  particulars  vitiate  the entire paoceedings"?      C. Preventive  Detention-Evidence gathered  need not be furnished to the Detenu.      D. Preventive  Detention matters-Counter-affidavits  by the detaining  authority on  receipt of  notice of the writ, not being furnished-Effect of non-furnishing-Constitution of India, 1950 Article 22(5).      E. Practice & procedure-Pronouncing final order without reasoned judgment  and  reserving  the  same  in  Preventive Detention Cases-Practice  deprecated Constitution  of  India Article 226,  136 read  with Civil  Procedure Code  sections 33,107 and  Criminal Procedure  Code Section 354, Difference between High Court & Supreme Court Procedures, explained.

HEADNOTE:      The respondent  challenged the  order of  his detention passed by  the  District  Magistrate,  Ludhiana  on  October 3,1983 under  section 3  (3) read  with section 3 (2) of the National Security  Act, 1980, through Criminal Writ Petition No. 516 of 1983. According to the petitioner respondent, the grounds of  detention served  on him on Oct. 6, 1983 showing that he  was detained  on the  basis of two speeches made by him on  8.7.1983 and  20.9.1983 as  recorded  by  the  Crime Investigation Department  of  the  Punjab  Police  contained certain particulars,  which were  totally  absent  from  the

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supporting material and therefore no reasonable person could have possible  passed the  detention order  on the  basis of such material.  The High  Court accepted  the contention and made the  rule absolute. Hence the appeal by the State after obtaining special leave.      Allowing the  appeal and  remanding the  matter to  the High Court of Punjab, the Court ^      HELD: 1:1. While passing orders of detaining great care must be  brought to  bear on  their task  by  the  detaining authorities. Preventive detention is a 51 necessary  evil   but  essentially   an   evil.   Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution. 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 to the meeting, which are  mentioned in ground No.1. The detaining authority needlessly applied  his scissors  excising  the  data  which mentioned the  date, place, the time and the occasion of the meeting. It  is this  lack of  thoughtfulness on the part of the detaining  authority which  furnished to  the respondent the semblance of an arguments. [61 A-B]      2. The  contention 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  supporting particulars supplied  to him  is incorrect. The inadequacies from which  the supplementary  particulars furnished  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 first ground of  detention  mentions  that  the  detenu  was  right  only formally or  technically. That is because, the C.I.D. Report was supplied to him along 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  detenu  as  forming  the  source  of information leading  to the  conclusion that  he had  made a speech which  necessitated his detention in the interests of public order.  In the  circumstances, the  grounds  and  the material furnished to the detenu have to be read together as if the  material in  the form  of the  C.I.D. report  was  a continuation of the grounds of detention. [57 C-E, 60 F-H]      Dr. Ramakrishna  Bhardwaj v. The State of Delhi, [1953] SCR 708, Khudiram  Das v. The State of West Bengal, [1975] 2 S.C.R. 832, @ 838 & 840; Mohammed Yusuf Rowther v. The State of J  & K,  [1980] 1  SCR 258 @ 268, 269; State of Bombay v. Atmaram, [1951]  S.C.R. 157;  Shibbanlal Saxena  v. State of Uttar Pradesh,  [1954] SCR 418; Dwarkadas Bhatia v. State of Jammu & Kashmir, [1956] S.C.R. 948; referred to.      3. 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.I.D. is true and  correct. His  right is  to receive  every material particular without which a full and effective representation cannot be  made. If  the order of the detention refers to or relies upon  any  document,  statement  or  other  material, copies thereof  have, of  course,  to  be  supplied  to  the detenu. It  is not  the law  that evidence  gathered by  the detaining  authority   against  the   detenu  must  also  be

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furnished to him. [62 G-H; 63 A-B]      Beni Madhob  Shaw v.  The State  of West Bengal, A.I.R. 1993 S.C.  2455 Har Jas Dev Singh v. State of Punjab, [1974] 1 SCR  281 @  288; Vakil  Vakil Singh  v. State  of Jammu  & Kashmir, A.I.R.  1974 2337  @, 2341;  Icchu Devi Choraria v. Union of India, [1981] 1 SCR 640 @ 650; referred to.      4. 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 52 it may  not be  of much consequence, especially if there was no allegation of mala fides against the detaining authority. There 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. [65 A-B]      Shaik Hanif  v. State  of West Bengal, [1974]3 SCR 258; Naranjan Singh  v. State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.      [The Court  emphasised the  importance of the detaining authority filing  his own  affidavit in cases of the present nature and  observed that-"There  are degrees of impropriety and the line which divides grave impropriety from illegality is too  thin 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  in filing  his own affidavit may vitiate the order of detention.] [65 C-D]      5. It  is desirable that the final order which the High Court intends  to pass  should  not  be  announced  until  a reasoned judgment  is ready for pronouncement. If the 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  to  be  implemented.  The  result inevitably is  that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment. [65 H; 66 A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  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, Addl Adv. Genl. of Punjab, D.S.  Brar, Asstt  Adv. General,  G.S. Mann.  Deputy Adv.  General,   R.D.  Aggarwal,  Govt.  Advocate,  Miss  A. Subhashini and S.K. Bagga for the Appellants.      Hardev Singh, G.S. Grewal, N.S Das Behl, R.S. Sodhi and J.S. Sandhawalia, 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 learned Single Judge  of the  High Court  of Punjab  and Haryana  in Criminal Writ  Petition No.  516 of 1983. That Writ Petition was filed  by the respondent. Shri Jagdev Singh Talwandi, to challenge an  order of  detention  passed  by  the  District Magistrate, Ludhiana, on October 3, 53 1983 whereby the respondent was detained under section 3 (3)

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read with section 3 (2) of the National Security Act, 1980.      The respondent  was arrested  in pursuance of the order of detention  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  detention 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: one  on July  8, 1983  at Nihang Chhowani, Baba Bakala, District Amritsar  and the  other on  September 20,  1983 at Gurdwara Manji Sahib, Amertsar. 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,           District 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 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.      (2)  That while addressing a conference convened by the           AISSF (All  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 in a position           to form  such a  Government. You  further exhorted           that the establishment of Khalsa Raaj was the only           solution  to   the  problems.   You  also  made  a           suggestion that the  Government 54           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.I.R.           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 "supporting material  forming the  base of  the  grounds  of detention". The  "supporting material",  by which  is  meant particulars of the grounds of detention, was supplied to the respondent along with the grounds. These particulars consist of what  is alleged  to be  a report of the speeches made by the respondent,  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 Ex. A1, read thus:           "While speaking he said that on July 2 by bringing

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    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 the martyrs. Now we will have to decide as to      what steps  should be  taken. The  beloved army of Guru      (Nihangs) have  protected 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 they      will slowly finish us.           The new  Inspector-General of  Police Mr. Bhinder,      has stated that there are no extremist in Darbar Sahib.      Further said that Congress wants to finish self respect      among you.  The Morcha, which is launched by Akali Dal,      is to  save the  Sikh appearance.  The awards have been      given to  police, have  they won  any war?  Such a  big      attack upon the Nihangs was 55      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 challenged 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  representation  to  the 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 Government 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 1st  ground of  detention are  totally absent  from  the supporting material  supplied  to  him  and,  therefore,  no reasonable person  could have  possibly passed the detention order on  the basis  of that  material. The  learned counsel urged that the order of detention was bad either 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.      For the  purpose of  focussing attention  on  the  true nature of the respondent’s contention and the prejudice said to have  been caused  to him,  the learned Judge of the High Court  resorted   to  an   ingenious  device.  He  coined  a conversation between  the detaining authority and the detenu on the subject of their rival contentions in this case. That imaginary conversation  may be  reproduced, at least for the merit of its novelty:           "(The detaining authority and the detenu come face      to face.)           Detaining authority: (After reading out Ground No.      1 to  the detenu)  : You  had made  that  objectionable      speech.

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56 Detenu:   Sir, you seem to have been wrongly informed. I did           not deliver  any speech, provocative or otherwise,           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 the  C.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  that           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           scrutiny,  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. Detenu:   Sir, 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           authority orders  the detention  of the  detenu on           two grounds by adding one more ground on the basis           of another  speech. The detaining authority serves           the order of detention upon the detenu, containing           two  grounds  of  detention.  Simultaneously,  the           detaining  authority   supplies   the   supporting           material to the detenu.") 57      We must mention in order to put the record straight and in fairness  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 suggested themselves  to him  are, in  a 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 judgment lies in an easy, unexamined assumption which he has made  on a  significant aspect of the matter. The detenu reminded the  detaining authority that the C.I.D. 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 because, the C.I.D. report was supplied

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to him  along 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 detenu as forming the source of information leading to  the conclusion  that he  had made a speech which necessitated his detention in the 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.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 unfamiliarity  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 58 have ended  there and  the curtain  rung down.  Indeed,  the dialogue, 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 him at the  Shaheedi Conference,  did not  contain the  material particulars which  formed an  important constituent  of  the grounds served  upon him.  His grievance  is that the C.I.D. report  of  his  speech  does  not  mention  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.      Article 22  (5) of  the Constitution,  around which the argument or the respondent revolves, reads thus:           "When any  person is  detained in  pursuance of an      order made  under  any  law  providing  for  preventive      detention, the  authority making  the order  shall,  as      soon as  may be, communicate to such person the grounds      on which  the order  has been made and shall afford him      the earliest  opportunity of  making  a  representation      against the order."      This Article  has 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. Ram krishna Bhardwaj v. The State of Delhi,(1)  in which  Patanjali Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detenu 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

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to him".      Khudiram Das  v. The  State of  West  Bengal,  2  is  a judgment of a four Judge-Bench of this Court in a case which arose under the Main- 59 tenance of Internal Security Act, 1971. One of us, Bhagwati, J., who  spoke for the Court, surveyed the decisions bearing on the question of the obligation of the detaining authority and explained 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 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  v. The  State  of  Jammu  & Kashmir,(1) Chinnappa  Raddy, J.,  in a concurring judgment, dealt with  the  implications  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  (1) Shibbanlal      Saxena v.  State of  Uttar Pradesh (3) Dwarkadas Bhatia      v. State  of Jammu & Kashmir (4). The interpretation of      Article 22,  consistently adopted  by this  Court,  is,      perhaps, 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  be, of  the  grounds  on  which  the  order  of      detention is  based, that  is, the grounds which led to      the subjective  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,(2) it was observed that  these two  safeguards "are the barest minimum which must be 60 observed before  an executive  authority can be permitted to preventively detain  a person and thereby drown his right of personal liberty  in the  name of  public  good  and  social 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  in this  behalf admits no exception and its rigour cannot be relaxed under any circumstances.      Having  given   our  anxious   consideration  to   this question, it  seems to  us impossible  to accept the view of the High  Court that  sufficient particulars  of  the  first ground of  detention where not furnished to the detenu so as to enable  him to  make an  effective representation  to the detaining authority,  that is to say, a representation which on being accepted may give relief to him. This is not a case in which  the ground  of detention  contains a  bare or bald

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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 be able to make a full and effective representation against the  order of  detention. That  ground mentions  the place, date  and time  of the alleged meeting. describes the occasion on  which  the  meeting  was  held,  that  is,  the ’Shaheedi Conference’. It mentions the approximate number of persons  who  were  present  at  the  meeting.  Finally,  it mentions with  particularity the  various statements made by the respondent in his speech. These particulars mentioned in the grounds  of detention comprise the entire gamut of facts which it  was necessary  for the respondent to know in order to make  a well-informed  representation.  The  inadequacies from which  the supplementary  particulars furnished  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, we  are somewhat surprised that in a matter of this nature, 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.I.D.  report  of  which  an  extract  was supplied to  the  respondent  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.  1 The detaining authority needlessly applied his scissors excising  the data  which mentioned  the date,  the place, the  time and the occasion of the meeting. It is this lack  of   thoughtfulness  on  the  part  of  the  detaining authority which furnished to the respondent the semblance of an argument. This Court has observed in numerous cases that, while passing  orders  of  detention,  great  care  must  be brought to  bear on their task by the detaining authorities. Preventive detention  is a necessary evil but essentially an evil. Therefore, deprivation of personal liberty, if at all, has to  be on  the strict terms of the Constitution. Nothing less. We  will utter  the of  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.I.D., relating to the speech made by the respondent at the Shaheedi  Conference. 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  simultaneously and  ground No.  1  mentions  every conceivable detail  which it  was necessary  to  mention  in

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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.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 incorporated  in ground  No.  1.  It  is therefore not possible to accept the argument that the order of detention  is bad because the detaining 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 62 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.      In Beni  Madhob Shaw v. The State of West Bengal,(1) it was argued  on behalf  of the detenu that the details of the activities attributed to him were not disclosed to him, as a result of  which his  right to  make a representation to the Government was  seriously prejudiced.  It was  held by  this Court that  since the  activities  forming  the  grounds  of detention 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  non-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 of.      In Her Jas 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  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  can, for  the consideration of the detaining authority.      In Vakil  Singh v.  State of  Jammu and Kashmir, (3) it was held  that since  the basic facts, as distinguished from factual details  were incorporated in the material which was supplied to  the detenu,  nothing more  was required  to  be intimated to him 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.I.D. is  true and correct. His right is to receive every material particular without which a full and 63 effective representation  cannot be  made. If  the order  of detention refers  to or  relies upon any document, statement or other  material, copies  thereof have,  of course,  to be supplied to  the detenu  as held by this Court in Ichhu Devi Choraria v.  Union of India.(1) 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 extract was furnished to the respondent,  was a  superfluous exercise in the light of

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the facts of the instant case.      Shri Hardev  Singh relied upon the following passage 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:           "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  sub serve  the purpose of      enabling   the    detenu   to    make   an    effective      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 authority  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.      Shri Hardev  Singh found  serious fault  with 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 Secretary in the Home Department of the Government of Punjab, and 64 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), who 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, 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 Constitution. Sarkaria, Jobserved on behalf of the Court:

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         "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  or      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." 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 much  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 this  case too,  there 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  importance  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  too thin  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  in filing his own affidavit may vitiate the order of detention.      Finally, Shri  Hardev  Singh  has  contended  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  advocate  before  the Advisory Board.  The learned advocate argued the case of the respondent along  with the  cases of  two other  detenus. It does not  appear that  any grievance was made by him that he was not  able to  obtain instructions from the respondent so as to  be able  to represent his case effectively before the Advisory Board.      For these  reasons, we  allow the  appeal and set aside the judgment  of the  High Court.  As desired by counsel for the respondent,  we remand  the matter to the High Court for disposal  of   the  remaining   contentions  raised  by  the respondent 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 order  which the  High Court intends to pass should not be announced until a reasoned judgment 65

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is ready  for pronouncement.  Suppose, for  example, that  a final order  without a reasoned judgment 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 unconstitutional or, as  in the  instant case, that a detenu be released from detention. If the 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 to be implemented. The  result inevitably is that the operation of the order  passed by the High Court has 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 Court is 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  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. S.R.                                      Appeal allowed and                                           Case remanded to                                           the High Court 67