Sampat Prakash Vs. State of Jammu
& Kashmir [1969] INSC 30 (6 February 1969)
06/02/1969 SHAH, J.C.
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.
CITATION: 1969 AIR 1153 1969 SCR (3) 574 1969
SCC (1) 562
CITATOR INFO:
R 1971 SC1217 (2) RF 1973 SC 897 (7) RF 1981
SC 746 (3,9) F 1981 SC 814 (7) R 1982 SC 710 (109) RF 1982 SC1029 (14)
ACT:
Jammu and Kashmir Preventive Detention Act (J
& K 13 of 1964) as amended by Amending Act 8 of 1967, ss. 8(2) & 10-
Order of detention without reference to Advisory Board-Order revoked at the end
of 6 months and fresh order passed with new grounds-If mala fide-Indefiniteness
due to withholding of facts under s. 8(2)-If order vague.
HEADNOTE:
On March 16, 1968 the petitioner was arrested
and ordered to be detained under s. 3(1) (a) (1) of the Jammu and Kashmir
Preventive Detention Act, 1964. On September 16, 1968, the order was revoked
and another order was served on him. on September 24, 1968 the petitioner was
served, with the grounds for the fresh order of detention His case was referred
to the Advisory Board on October 26, 1968 and the Board recommended his
detention. Under s. 10 of the Act, as amended by s. 13A, of the Amending Act 8
of 1967, the Government is required to refer a case to the Advisory Board
within 60 days from the date of detention:
In a petition for the issue of a writ of
habeas corpus it was contended that : (1) Since the case of,, the petitioner
was not referred to the Advisory Board within 60 days of the date of detention
(March 16, 1968) the detention was invalid; (2) The authorities acted mala fide
in making the detention order; (3) The grounds in support of the order were
vague and indefinite; and (4) 'Mat his being subjected to solitary confinement
while in detention was illegal.
HELD : (1) There was no reason for not
accepting the statement of the State that it was not intended, when the
detention order of March 16, 1968 was passed that the petitioner was to be kept
in detention for a period longer than 6 months. Therefore, his case fell within
the terms of s.13A(1)which provides that 'notwithstanding anything, contained
in this Act a person may be detained for a period not longer than 6 months
without obtaining the opinion of the Advisioiry Board. In the present case the
petitioner was detained under the first order only for a period of 6 months
when that order was revoked by the second order of detention. [579 C] (2)The
grounds for the two-orders are not identical; When the first Order was passed
the petitioner was not intended to be detained for a period exceeding 6 months.
Thereafter, in consequence of further information that the petitioner was
violent by nature and was a perpetual threat to the maintenance of public
order, the Government had to issue a fresh order. Therefore. it could not be said
that the Government acted mala fide in making either the original or the fresh
order. [579 G-H; 580 A-B] (3) The order clearly stated facts relevant to the
grounds of detention, except those which Government considered to be against
public interest to disclose. Under s. 8 (2) it is open to the Government to
withhold such facts. Because of the withholding of such facts the grounds in
the order of detention could not be said to. be vague or indefinite. [580 C-E]
575 (4) Notwithstanding the broad principles of the rule of law, equality and
liberty of, the individual enshrined in the Constitution, it tolerates on
account 1 the peculiar conditions prevailing, legislation in relation to
preventive detention, which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the Power to detain is not
a power to publish, and the restrictions placed must, consistently with the
effectiveness of detention, be minimal. Since a detenu is not a convict he
cannot be subjected to solitary confinement. [580]
ORIGINAL JURISDICTION:, Writ Petition No. 3
61 of 1968.
Petition under Art. 32 of the Constitution of
India for writ in the nature of habeas corpus.
M.K. Ramamurthi, Shyamala Pappu and Vineet
Kumar, for the petitioner.
R. Gopalakrishnan and R. N, Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Shah, J. On March 16, 1968 the petitioner was arrested and ordered to be
detained under S. 3(1) (,a) (i) of the Jammu and Kashmir Preventive Detention
Act 13 of 1964. On March 26, 1968, he was served- with the grounds of
detention. On May 3, 1968, the petitioner moved a petition for a writ of habeas
corpus in this Court. The petition was rejected by this Court on October 10,
1968. In the meanwhile the order dated March 16 1968, was revoked on September
16, 1968, and another order was served upon the petitioner on the same day. On
September 24, 1.968, he was served with the grounds of detention for the fresh
order, and his case was referred to the Advisory. Board on October 26, 1968. On
October 30, 1968, the Advisory Board recommended that the petitioner. be
detained. The petitioner then- moved this petition on November 11, 1968 a writ
of habeas corpus.
Two contentions in the nature of preliminary
objections were raised in support of the petition. It was urged that (1) the
petitioner was, in spite of a specific request, denied a personal hearing
before the Advisory Board, and (2) that the Chief Minister who was in charge of
the portfolio relating to preventive detention did not apply his mind to the
case of the petitioner before making the order of detention. An affidavit is
filed by the Secretary to the Government of Jammu & Kashmir affirming that
the petitioner made no request for production before the Board for a personal
hearing. He has also affirmed that the Chief Minister did consider the case of
the petitioner and directed that the petitioner be detained in custody under
the Preventive Detention Act. In view of this affidavit, counsel for the
petitioner did not press he two preliminary contentions.
576 Counsel urged that the order of detention
was invalid because (1) that the case of the petitioner was not referred to the
Advisory board till September 24, 1968 and on that account his detention was
invalid, and he could not be continued in detention thereafter;(2) that in
making the detention order the authorities acted mala fide; and (3) the grounds
in support of the order were vague and indefinite By Art. 22 of the
Constitution certain protection is conferred upon persons who are detained
under orders of preventive detention But Art. 35 (c) in its application to the
State of Jammu & Kashmir provides "no law with respect to preventive
detention made by the Legislature of the State of Jammu and Kashmir, whether
before or after the commencement of the Constitution (Application to Jammu and
Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with
any of the provisions of this (Part III) Part, but any such law shall, to the
extent of such in-consistency, cease to have effect on the expiration of
fifteen years from the commencement of the said Order, except as respects
things done or omitted to be done before the expiration thereof." The
protection of cls. (5), (7) of Art. 22 insofar the, provision are inconsistent
therewith does not avail the petitioner. By s.3 the Government of Jammu and
Kashmir is entitled, if satisfied with respect to any person that with a view
to Preventing him from acting in any manner prejudicial to the security of the State
or the maintenance of public order, to make an order direct that such person be
detained. By s. 8 it is provided :
"(1) When a person is detained in
pursuance of a detention order, the authority making the order shall, as soon
as may be, but not later than five days from the date of detention, communicate
to him the on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order to the Government.
(2) Nothing in sub-section (1) shall require
the authority to disclose facts which it considers to be against the public
interest to disclose." Section 9 provides for the constitution of Advisory
Board and S. 10 deals with references to the Advisory Board that section the
Government is required within thirty days from the date of detention under the
order to place before the Advisory Board the grounds on which the order has
been made and the 577 representation, it any, made by the person affected by
the order. By s. 12 it is provided:
"(1) In any case where the Advisory
Board has reported that there is in its opinion sufficient cause for the
detention of a person, the Government may confirm the detention order and
continue the detention of the person concerned for such period as it thinks
fit.
(2) In any case where the Advisory Board has
reported that there is in its opinion no sufficient cause for the detention of
the person concerned, the Government shall revoke the detention order and cause
the person to be released forthwith.,, Section 13 prescribes the maximum,
period of detention for which any person may be detained in pursuance of any
detention order. Section 13A which was added by Act 8 of 1967 enables the State
to detain a person for a period of two years. Section 13A provides:
"(1) Notwithstanding anything contained
in this Act, any person detained under a detention order made in any of the
following classes of cases or under any of the following circumstances may be
detained for a period longer than three months, but not longer than six months,
from the date of detention, without obtaining the opinion of any Advisory
Board, namely, when such person has been detained with a view to preventing him
from acting in any manner prejudicial to (i) the 'security of the State; (ii)
the maintenance of public order;
Provided that where any such person has been
detained with a view to Preventing him from acting in any manner prejudicial to
the security of the State grounds on which the detention order has been made
are not communicated to him under the proviso to section 8 (1), such person may
be detained for a period of two years from the date of detention without
obtaining the opinion of the Advisory Board.
(2) In the case of every person detained with
a view to preventing him from acting in any manner prejudicial to the security
of the State or the maintenance of public order, the provisions of this Act
shall have effect subject to the following modifications, namely:- (a) in
sub-section (3) of section 3, for the words 'twelve days', the words 'twenty-four
days' shall be substituted.
578 (b) in sub-section (1) of section 8,- (i)
for the words 'five days' the words 'ten day's shall be substituted;
(ii) the following proviso shall be inserted
at the end, namely Provided that nothing in this sub-section shall apply to the
case of any person detained with a view to preventing him from acting in any
manner prejudicial to the security of the State, if the authority making the
order, by the same or a subsequent order directs that the person detained may
be informed that it would be against public interest to communicate to him. the
grounds on which the detention order has been made.' (c) in section 10,- (i)
after the words, 'In every case where a detention order has been made under
this Act' occurring in the beginning, the brackets and words '[other than a
case to which the proviso to section 8(1) applies]' shall be inserted;
and (ii) for the words 'thirty days' the
words 'sixty days' shall be substituted, (b) in section 1 1, for the words 'ten
weeks' the words five months shall be substituted." The effect of s. 13A
insofar as it is relevant to this case is to authorise the State in the cases
specified to detain a person without obtaining the opinion of the Advisory
Board, if he is to be detained for a period longer than three months but not
longer than six months from the date of detention. By sub-s. (2) the periods
prescribed for the various steps under the Act are doubled; for making report
to the District Magistrate when he exercises the power of detention the period
is extended to twenty-four days : for the Government to serve the grounds of
the order under s.
8(1) the period is extended to ten days; and
for the Advisory Board to make its report in cases covered by s. 13A the period
is extended to sixty days. Again by the proviso to s. 8(1) the Government is
entitled to withhold in serving grounds upon the detenu that it would be
against public interest to communicate to him the grounds on which the
detention order has been made, Relying upon the terms of s. 10(1) as amended by
s. 13A it was urged that the Government was bound to refer the case of the
petitioner within sixty days from the date of detention and' since no reference
was made the detention of the petitioner under the order dated March 16, 1968, was
unauthorised. This argument is plainly unsustainable. Section 13A opens with
words "Notwithstanding anything contained in this Act", and provides
that a person may be detained for a period not longer than six months without
obtaining the opinion of the Advisory Board. It is plainly contemplated thereby
that the Government may decide not to refer the case of the detenu to the
Advisory Board, because the period for which he is to. be detained is not to
exceed six months.
Section 13A is an exception to S. 10 as well
as to all other relevant provisions of the Act, and in case of conflicts.
13A prevails. The, petitioner was detained
for six months from March 16,.1968 to September 16, 1968 without obtaining the
opinion of the Advisory Board. We will be justified in accepting the contention
of the State that it was intended, when the order was pass detaining the
petitioner that he was not to be kept in detention for a period longer than six
months and his case fell within the terms of s. 13A (1) and on that account it
was not necessary to obtain the opinion of the Advisory Board.
It was said by counsel for the petitioner
that the plea of the State was inconsistent with the course of events, and the
State Government had taken shelter under the provisions of S. 13A (1) even
though they had at no stage any desire to release the petitioner from jail at
the expiry of or 'within six months. The Court will not be justified in
assuming from the circumstance that a fresh order has been issued that the
Government acted mala fide in making the original order or the fresh order. The
only plea raised by the petitioner in support of that plea is in paragraph- 1 5
of the p etition, that the cancellation of the earlier order of detention and
the service of the fresh order of detention on the petitioner was "a part
and parcel of the scheme of the State to suppress the peaceful trade union
movement, and that the fresh order of detention was passed mala fide. No
particulars are furnished which justify an inference that in resorting to the
provisions of the Act the Government's action was actuated by ill-will or taken
for some collateral purpose.
Reliance was also placed upon the recitals
'in the grounds supplied to the petitioner on March 16, 1968 and under the
fresh detention order dated September, 16, 1968, and it was contended that the
grounds being identical an inference followed that the previous detention order
was continued on the same grounds on which the original order was passed. On
comparing the grounds it cannot be said that they are identical. It is stated
in the last part of the Annexure to the grounds of detention under order dated
September 16, 1968, that from the middle of January to March 1968 the
petitioner went underground and during that period he used to attend secret
meetings in which he used to stress upon the Government employees that their
demands cannot be 580 conceded by the, Government unless they resort to
violence that the petitioner was violent by nature and was a perpetual threat
to the maintenance of public order. It cannot also be said that merely because
the previous order had been passed under which the 'Petitioner was intended to
be detained for a period of six months and thereafter In consequence of further
information the Government was required to issue a fresh order, the original
order ,or the fresh order was illegal.
The plea that the grounds were vague and
indefinite cannot also be accepted. It is recited in the order that the
Petitioner was informed that his detention was ordered on grounds specified in
the Annexure appended thereto, which also contained facts relevant thereto
except those which the Government considered to be against public interest to
disclose. By virtue of sub-s. (2) of s. 8, it is open to the Government not to
disclose,, facts which it considers to be against the public interest to
disclose. In the present case the order clearly states that' the Government
were of the view that facts relevant to the grounds except those which the
Government considered to be against public interest to disclose were intimated
to the petitioner. The Annexure may appear somewhat indefinite and vague. But,
that is obviously because facts which in the view of the Government, were
against public interest to disclose, were withheld from the petitioner. The
Government have power to withhold information about those facts, and they did
so.
The grounds cannot in the circumstances be
said to be vague and indefinite.
One more question needs to be dealt with. The
petitioner who was present in the Court at the time 'of hearing of this
petition complained that he is subjected to solitary confinement while in
detention. It must be emphasized that a, detenu is not a convict. Our
Constitution, notwithstanding the broad principles of the rule of law, equality
and liberty of the individual enshrined therein, tolerates, on account of
peculiar conditions prevailing, legislation which is a negation of the rule of
law, equality and liberty. But it is implicit in the Constitutional scheme that
the power to detain is not a power to punish for offences which an executive
authority in his subjective satisfaction believes a citizen to have committed.
Power to detain is primarily intended to be exercised in those rare cases when
the larger interest of the State demand that restrictions shall be placed upon
'the liberty of a citizen curbing his future activities The restrictions so
placed must, consistently with the effectiveness of detention, be minimal.
The petition fails and is dismissed.
V.P.S. Petition dismissed.
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