Mohammad Afzal Khan Vs. State of Jammu
& Kashmir  INSC 68 (13 November 1956)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
CITATION: 1957 AIR 173
Preventive Detention-Decision by Government
to continue such detention-If must be communicated to the detenue within three
months of the Order of detention Jammu and Kashmir Preventive Detention Act (IV
of Sambat 2011), S. 14.
Section 14 of the Jammu and Kashmir
Preventive Detention Act does not in terms provide for the making of a formal
order and there is no scope for the contention that the decision of the
Government there under that a detention order should be continued must be
communicated to the detenue concerned within three months of his detention.
Ackhar Singh v. The State of the Punjab, Petition NO. 359 of 1951, decided on October 22 1951, applied.
Consequently, where, as in the instant case,
the Government was satisfied that the activities of the detenue were
prejudicial to the maintenance of public order and he should be continued in
detention under s. 14 of the Act, such detention could not be challenged on the
ground, that no order under that section had been made or communicated to him
within three months of his detention, 64
ORIGINAL JUIRISDICTION : Petition No. 181 of
Under Article 32 of the Constitution for a
writ in the nature of Habeas Corpus.
T. R. Bhasin, Amicus Curiae for the
M. C. Setalvad, Attorney-General for India, Porus A. Mehta and R. H. Dhebar, for the respondent.
1956. November 13. The Judgment of the Court
was delivered by DAS C.J.-This is a petition under Art. 32 of the Constitution
of India praying for an order that the petitioner's detention be declared
illegal and that he be set at liberty. The facts are shortly as follows:
On June 30, 1954, the petitioner was arrested
in pursuance of an order of detention made on the same day under the Jammu and
Kashmir Preventive Detention Act No. 4 of (Sambat) 2011. On July 1, 1954, the
grounds on which the order had been made were communicated to the petitioner.
On July 12, 1954, the petitioner submitted his representation to the
Government. Not having heard anything further in the matter, the petitioner made
an application to the High Court of Jammu and Kashmir under s. 491 of the Code
of Criminal Procedure. It appears that the Government had reviewed the case of
the petitioner under sub-s. (2) of s. 14 in consultation with a person
nominated for the purpose on August 23, 1954, and was satisfied that he should
continue to be detained. Accordingly during the pendency of the habeas corpus
petition before the High Court the Government on December 23, 1954, made an
order under s. 14 continuing the detention of the petitioner. Thereafter the
petitioner moved the Vacation Judge of this Court under Art. 32. The learned
Vacation Judge was not satisfied that there was any prima facie ground for
interference on the assumption that the Jammu and Kashmir Preventive Detention'
Act was valid.
As, however, the constitutionality of that
Act was challenged the learned Judge directed a Rule to issue. On September 9,
1955, however, the petitioner, alleging that a certain decision had been made
by the 65 Jammu and Kashmir High Court which covered his case, asked for
permission to withdraw the petition, which was accordingly dismissed as
withdrawn. In the meantime and thereafter the petitioner's case was reviewed by
the Government and orders extending his detention were made from time to time,
the last of such orders having been made on June 8, 1956. On May 25, 1956, he
made a second petition before the Jammu and Kashmir High Court. That petition
was dismissed on June 21, 1956, by the High Court. There. After the present
petition under Art. 32 were presented before this Court on September 26, 1956.
The learned Attorney-General has taken a
preliminary objection that in view of the observations of the Vacation Judge as
to the merits of the case referred to above the present petition in so far as
it raises any question other than the constitutional point was not main
tainable. Shri T. R. Bhasin, who has assisted us in this matter as amicus
curiae, draws our attention to a fresh petition filed by the petitioner and
assures us that he does not desire to raise any of the questions of fact raised
in the first petition, which had been withdrawn, but will confine his arguments
to the new points of law raised in the supplementary petition.
In view of the fact that this petition is
concerned with the liberty of a subject, we have considered it right to hear
Shri T. R. Bhasin on the new points sought to be raised by him.
Shri T. R. Bhasin raises two points, namely:-
(1) that the detention has become wrongful and illegal inasmuch as the order
under s. 14 was not made before the expiration of a period of three months
after the order of detention; and (2) that the second ground of detention is
wrong inasmuch as the Chief Secretary has admitted that there is no such hotel
as Guest House hotel at Amira Kadal, where the detenue is alleged to have
attended a meeting therein referred to.
The second point was raised on account of the
typographical error in the copy of the Chief Secretary's affidavit, which was
available to' the learned counsel, 66 In point of fact the Chief Secretary has
maintained that there is a Guest House hotel at Amira Kadal. The original
affidavit having been shown to the learned counsel, he has abandoned the second
point. He, however, presses the first point.
Learned counsel draws our attention to Art.
22(4) of the Constitution. That clause lays down that no law providing for
preventive detention shall authorise the detention of a person for a longer
period than three months except in the circumstances therein specified. Sub-cl.
(b) makes it quite clear that cl. (4) does not apply to a person who is
detained in accordance with the provisions of any law made under sub-cls. (a)
and (b) of el. (7) by Parliament, which in the case of Jammu and Kashmir has
been substituted by the word 'legislature of the State' by the Constitution
(Application to Jammu and Kashmir) Order, 1954, made by the President. The
question is whether the petitioner's detention has been properly continued beyond
the period of three months by virtue of the provisions of s. 14 of the Jammu
and Kashmir Preventive Detention Act.
Shri T. R. Bhas in maintains that an order
must be made under s. 14 before the expiry of the period of three months after
the date of the order of detention. Turning to s. 14 we find that it does not
in. terms provide for the making of any formal order. It only says that
notwithstanding anything contained in the Act any person detained under a
detention order made in any of the two classes of cases 'may' be detained or
continued in detention without obtaining the opinion of an Advisory Board for a
period longer than three months. There is no specific provision in the section
for making any order or even such a declaration as is contemplated by the
provio to s. 8(1). Shri T. R Bhasin then contends that at any rate the word
used being "may' it implies that the Government must make up its mind and
when the Government so makes up its mind to deal with the petitioner's case
under s. 14, the fact of such decision should be communicated to the petitioner.
In point of fact we find that the Government had appointed Shri A. H. Durani
for purposes of 67 consultations under s. 14(2) on August 23, 1954, which was
within two months from the date of the order of detention.
It is, therefore, clear on the record that
the Government had come to a decision with regard to this particular detenue
against whom the order of detention, was made on the ground of his activities
being prejudicial to the maintenance of public order that he should be dealt
with under s. 14 and that his case should not go to the Advisory Board. We see
no warrant for the contention that this decision of the Government must be
communicated to the detenue. It has not been shown how the communication of
this decision would have been beneficial to the detenue.
Indeed in the case of Achhar Singh v. The
State of Punjab (1) this Court has expressed the opinion that the omission to convey
the order made under s. 11 of the Indian Preventive Detention Act does not make
the detention illegal or result in infringement of the petitioner's fundamental
right. If that be the position under s. 11 of the Indian Preventive Detention
Act, which provides for the making of a formal order, all the more must the
position be the same under s. 14 of the Jammu and Kashmir Preventive Detention
Act, which does not in terms require any formal order to be made. In our
opinion there is no substance in this application, which must accordingly be
(1) Petition No- 359 Of 1951, decided on October 22, 1951.