Fazal Hussain and Arshad Ahmad Vs. The
State of Jammu and Kashmir [1969] INSC 158 (29 July 1969)
29/07/1969 SIKRI, S.M.
SIKRI, S.M.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1970 AIR 1870 1970 SCR (1) 684 1969
SCC (2) 356
ACT:
Jammu and Kashmir Preventive Detention Act,
1964 s. 3(1)(a)(i) and s. 8--Information to detenu that it would be against
public interest to communicate grounds of detention to him--It must be given
within 10 days.
HEADNOTE:
In a petition under article 32 of the
Constitution the first petitioner's detention under s. 3(1)(a)(i) of the Jammu
and Kashmir Preventive Detention Act, 1961 was challenged as illegal on the
basis that no grounds of detention were served on him but that an order
informing him that it would be against public interest to disclose the grounds
to him was served on him after the expiry of 10 days prescribed in section 8;
it was contended that his detention was, therefore, illegal.
In the case of the second petitioner it was
claimed that the affidavit in reply to the. petition which set out the facts
relating to the service of the order of detention and an order under the
proviso to section 8 was sworn to by an Additional Secretary on the basis of
information derived from the record of the case. and not by the Jail Superintendent
who was alleged to have served the orders on the detenu.
HELD: (1) The detention of the first
petitioner was illegal and he must be released.
It is the duty of the detaining authority to
communicate the grounds of detention within 10 days of the date of detention if
the case does not fall within the proviso to s. 8. If the detaining authority
neither communicates the grounds of detention nor informs the detenu under the
proviso within 10 days of the detention, the detention would become illegal and
a subsequent order under the proviso would not have the effect of rendering the
detention legal.
Abdul Jabar Butt v. State of Jammu and
Kashmir, [1957] S.C.R. 51,59.
(2) The petition filed by the second
petitioner must be dismissed.
The State had annexed to its affidavit a copy
of the Government detention order on which the Jail Superintendent had endorsed
the fact of its service. In view of this it was not necessary for the
Superintendent to have filed an affidavit of having effected service.
ORIGINAL JURISDICTION: Writ Petition No. 111
of 1969.
Petition under Art. 32 of the Constitution of
India for a writ in the nature of habeas corpus.
R.K. Garg and Anil Kumar Gupta for the
petitioners.
R. Gopalakrishnan and R.N. Sachthey, for the
respondent.
685 The Judgment of the court was delivered
by Sikri, J. This is a joint petition by two detenues under art. 32 of the
Constitution praying for the issue of a writ of habeas corpus or other
appropriate writ, direction or order directing that the petitioners be
released.
The petitioner, Arshad Ahmad, was detained in
pursuance of Detention Order dated September 19, 1967, passed under s.
3(1)(a)(i) of the Jammu & Kashmir Preventive Detention Act, 1964. The copy
of the order on the record shows that the order was served on the detenu by
Jaswant Singh, Deputy Superintendent of Police (CID), Jammu on September 27,
1967.
No grounds of detention were served on the
detenu, but an order dated October 25, 1967, issued by the Secretary to the
Government, Home Department, was served on him informing him that it would be
against the public interest to disclose the facts or the grounds of detention
to him.
The learned counsel for the petitioner, Mr.
Garg, contends that the order dated October 25, 1967, was served too late and
the detention of the petitioner became illegal when the time for serving the
grounds of detention had expired.
Section 8 of the Jammu and Kashmir Preventive
Detention Act, 1964, provides that "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 ten days from the date of detention, communicate to him the
grounds on which the order has been made, and shall afford him the earliest
opportunity of making a representation against the order to the
Government." But the proviso to s. 8 states:
"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." The learned counsel for the State contends that if an order
has been made under the proviso it does not matter whether the order is made
and served beyond the ten days' time specified in We are unable to accept this
contention. There is no doubt that it is the duty of the detaining authority to
communicate the 686 grounds within ten days of the date of detention if the
case does not fall within the proviso. If the detaining authority neither
communicates the grounds of detention nor informs the detenu under the proviso
within 10 days of the detention, the detention would become illegal and a
subsequent order under the proviso would not have the effect of rendering the
detention legal.
A similar point arose before this Court in
Abdul Jabar Butt v. State of Jammu & Kashmir(1). This Court was then
considering the Jammu and Kashmir Preventive Detention Act (IV of Sambat 2011)
and similar provisions contained therein. Das, C.J., observed:
"If the grounds are not communicated to
the detenu within the period of time prescribed by the expression "as soon
as may be" the detenu becomes deprived of his statutory right under
sub-s.(1) and his detention in such circumstances becomes illegal as being
otherwise than in accordance with procedure prescribed by law. In order to
prevent this result in a certain specified cases the proviso authorises the
Government to issue the requisite declaration so as to exclude entirely the
operation of sub-s. (1).
It, therefore, stands to reason and is
consistent with the principle of harmonious construction of statutes that the
power of issuing a declaration so as to prevent the unwanted result of the
operation of sub-s. (1) should be exercised before that very result sets
in." Although there is some change in the language in the present act in
substance the provisions are similar as far as the present point is concerned.
We. are here concerned with the liberty of a subject and we must adopt a
construction which would not have the effect of enabling the executive to make
an order under the proviso at any time after the lapse of ten days specified in
s. 8. Even from the practical point of view we are unable to. see that the
Government would experience any difficulty in deciding within ten days whether
the grounds should be served or not in the public interest. All the material is
with the Government when it passes the order of detention and a period of ten
days is ample for the Government to make up its mind whether the case falls
within the proviso or not.
In the result we hold that the detention of the
petitioner Arshad Ahmad is illegal and he should be released.
Coming to the case of the second petitioner
Fazal Hussain, he was detained by order dated January 3, 1968, passed under (1)
[1957] S.C.R. 51, 59.
687 s. 3(1) read with s. 5 of the Jammu and
Kashmir Preventive Detention Act, 1964. The order of detention was served on
the petitioner in the Central Jail on January 8, 1968, and the same was read
out to him. By order dated January 11, 1968, the petitioner was informed that
it was against public interest to disclose facts or to communicate to him the
grounds on which the detention order was passed. The affidavit stating these
facts is sworn to by the Additional Secretary to the Government, Jammu and
Kashmir, Home Department, and it is stated in the verification that these facts
were stated on the basis of information derived from the record of the case
which he believed to be true.
The learned counsel for the petitioner
contends that the Deputy Superintendent Central Jail, who is alleged to have served
the order of detention on the petitioner, should have filed the affidavit. The
State has annexed to the affidavit a copy of the Government Detention Order and
below the detention order the following endorsement exists:
"The notice of this order has been
served upon Shri Fazal Hussain s/o Ayub Khan detenu by reading over the same to
him.
Sd/-Dy.
Superintendent Central Jail, Jammu 8/1"
In view of this endorsement' the order of detention we do not consider that it
was necessary that the Deputy Superintendent, Central Jail, should have filed
an affidavit to the effect that he had served the order of detention on the
detenu Fazal Hussain.
No other point is raised. The petition of
Fazal Hussain accordingly fails and is dismissed.
R.K.P.S. Petition dismissed.
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