ABDUL JABAR BUTT versus STATE OF JAMMU AND KASHMIR

S.C.R. SUPREME COURT REPORTS

present case, because they have no bearing on the questions which we have to consider in this case. For the reasons given above, we hold that the Industrial Tribunal came to the correct decision that the respondents employed in the electricity department of the Baroda Municipality w<;re not entitled to the bonus claimed, and the Labour Appeliate Tribunal came to an erroneous decision on that question in its order d::ited November 23, 1955. W accordingly allow the appeal and set aside the order of the Labour Appellate Tribunal. In the circumstances of this case, we direct that the parties \Viii bear their own costs throughout.

Appeal allowed.

ABDUL JABAR BUTT

(with connected petition)

(S. R. DAS, C.J., BHAGWATI, VENKATARAMA AYYAR. B. P. SINHA and S. K. D11.s, JJ.)

Preventive Detention-Legality-Time prescribed for communi-cating grounds of detention to the dett•nue-·As soon as may be', Meaning of-Declaration enabling· withholding of such mmm1111ica-tion, if must be made by Government 1,efore expiry of ..-11<.'1 time-/ammu and Kashmir Preventive Dcte11tio11 Act (JV of Sam hut '21!1 l), s. 8(1 ), Proviso.

The two petitioners were detained under s. 3( I) of the Jam mu and Kashmir Preventive Detention Act on April 26, I<)';\ with view to preventing them from acting in manner prcjudicinl to the security of the State. No grounds were communicated to them under s. 8( I) of the Act and no declarations """e made under the proviso of that section. The petitioners applied to the High Court under s. 491 of the Code of Criminal Procedure and •foring the pendency of those applications, on June 30, 1956, declarations under the proviso were made by the Government to the effect that it would be against the public interest to communi-cate to the petitioners the. grounds on which the orders of detention had been made against them. On July 28, 1956, the High Court rejected the applications. The cases of the petitioners were

Baroda Borouglr . Municipalitp v. Its Workmen S. K. Das].

19!;6 Abdul Jabar Butt v. Gtau of Jammu & Kt11hmir

reviewed by the Government under s. 14(2) of the Act in consulta-tion with person nominated for that purpose on June 4, 1956, and it was satisfied that the petitioners should continue to be detained and, accordingly, passed orders to that effect under s. 14 of the Act on September 26, 1956. The question was whether the declarations were made within the_ time prescribed by s. 8( 1) of the Act for comn1unicating the grounds of detention and, if not, whether the petitioners had 'been lawfully detained.

Held, that the expression 'as soon as may be' in sub-s. (I) of s. 8 of the Ja1nmu and Kashn1ir Preventive Detention Act, whereby the Act prescribed the time within which the Govern-1nent must comn1unicate to the detenue the grounds of his detention, meant within .a reasonable time, with the understanding to do the act \vithin the shortest possible tin1ei from the date of detention.

King's Old Country, Ltd. v. Liquid Carbonic Can. Corpn. Ltd. (1942) 2 W.W.R. 603, followed.

Uiagar Singh v. The State of the Punjab, [1952] S.C.R. 756 and Keshab Nilkanth foglekar v. The Commissioner of Police, Greater Bombay, Petition No. 602 of 1956, decided on September 17, 1956, referred to.

Although it might not be possible in many cases to con1pute the span of time thus indicated by hours, days or months, what was possible and the Court had to do in the facts and circum· stances of each particular case, was to find whether the act was or was not done within the time which was reasonably convenient or reasonably requisite.

The proviso to the sulrsection clearly implied that the power it vested in the Government to exclude from the operation of the sub·section a:rtain class of detenues by making the required declaration, must be exercised and such declaration made before the exi)iry of the time prescribed by the sub.section for communi· eating to the detenuc the grounds on which the detention order against him had been made.

Hissam-VJ-Din Battdy and Others v. The State, A.LR. 1955 J. & K. 7, overruled.

Consequently, as in the instant cases the affidavits filed on behalf of the Government disclosed no particular cjrcumsrancc or reason why the declarations under the proviso could not have been made before more than two months had elapsed fro1n the dates when the orders of detention had become effective, the detenues must be held to have been deprived of their liberty otherwise than in accordance with the procedure established by the Act, embodying as it <foes the fundamental right guaranteed under Art. 22(5) of the Constitution of India, and must be released forthwith.

ORIGINAL JuR1sDICTION: Petition Nos. 173 & 174 of 1956.

Under Article 32 of the Constitution for wrii in the nature of Habeas Corpus.

/. B. Dadachanji, Amicus Curiae, for the petitioners.

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 dClivered by

DAs C.J.-These two petitions raise common question of interpretation of s. 8 of the Jammu and Kashmir Preventive Detention Act, 2011, being Act IV of (Sambat) 2011 (hereinafter referred to as the Act). Both the petitions have been filed under Art. 32 of the Constitution of Indja, complaining that the petitioners have been and are being wrongfully detained under the Act and praying for their immediate release.

By two separa_te orders made by the Jammu and Kashmir Government on April 26, 1956, in exercise of the powers conferred on it by sub-s. ( 1) of s. 3 of the Act the Government ordered that the petitioners be detained. Each of the orders recited that the Govern-ment had been satisfied with respect to each of the petitioners that with view to preventing him from acting in manner prejudicial to the security of th~ State, it was necessary to make an order that he be detained. No grounds having been supplied to either of the petitioners nor any declaration having been made under the proviso to s. 8(1) of the Act for considerable time, each of the petitioners applied to the High Court of Jammu and Kashmir under s. 491 of the Code of Criminal Procedure for an order in the nature of writ of habeas corpus. During the pendency of those applications on June 30, 1956, that is to say, more than two months after the elate of the original order of detention, ' declaration was made by the Government under the proviso to s. 8 ( 1) to the effect that it would be against the public interest to com-municate to the detenues · the grounds on which the detention orders had been made. On July 28, 1956, both the petitions were dismissed by tfle High Court. It appears that the case of each of the detenues had

Abtlul J~111 Bull v.

Sl4f1 qf ]ll/Tlr1W

& lr41frmir

1956 '4bdul Jabar Butt

state of Jamm" & Kashmir D., C.J.

been reviewed by the Government under sub-s. (2) of s. 14 of the Act in consultation with person nominated by the Government for that purpose on June 4, 1956, and the Government was satisfied that the detenues should continue to be detained. Accordingly on September 26, 1956, in exercise of the powers conferred by s. 14 of the Act the Government issued two separate orders directing that the said two detenues do continue to be detained. In the meantime on September 19, 1956, the two, present applications were filed before this Court. The question is whether the declaration under the proviso to s. 8 ( 1) of the Act was made within the time fixed by s. 8 (1) of the Act for the communication to the detenues of the grounds on which the orders of detention had been made, and if not, whether the detention became illegal.

These two petitions came up for hearing before Division Bench of this Court on October 20, 1956, when the attention of the Court was drawn to Full Bench decision of the Jam mu and Kashmir High Court in Hissam-Ud-Din Bandy and Others v. The State('), where it was held that though it was highly undesirable that detenue should remain in suspense, the;e was no time limit fixed by the proviso for mal:in declaratior. and that, therefore, where the detention was for reasons of security of State, the mere fact that the declaration had been delayed beyond reasonable time after the '1ate of detention did not vitiate the detention. As the decision of Full Bench consisting of three Judges required consideration, the Division Bench took the view that the petitions should be placed before larger Bench. Hence the petitions have 'ome up before us for final disposal.

Some of the provisions of the Constitution of India, subject to · some exceptions and modifications, were extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) 01der, 1954, made by the President in exercise of the powers conferred on him by cl. (I) of Art. 370 of the Constitution. Amongst other things in Art. 35 as (1) A.I.R. 1955 J. & K. 7.

extended to Jammu and Kashmir new clause was added, namely,

" ( c) 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, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five vears from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof."

Ther~fon:, the detention of the petitioners cannot be -questioned for five years from the date of the President's order on the ground that the Act is inconsistent with any of the fundamental rights guaranteed under Part III of the Constitution. The legality of the peti-tioners' detention will, therefore, depend on and have to be considered on true construction of the provisions of the Act.

Turning now to the Act we come to s. 3, which gives to the Government and some of its officers specifically enumerated therein the power to make an order of detention against certain persons. The conditiQ.n precedent to the making of such order is that the Government must be satisfied with respect to any person that with view to preventing him from acting in any manner prejudicial to certain enumerated objects it is necessary to make an order of detention. The enumerated objects include 4 items, namely, (i) security of the State or (ii) the maintenance of public order or (iii) the maintenance of the loyalty of and discipline among the members of the police forces of the State or (iv) the maintenance of supplies and services essential to the community. There is also provision in cl. (b) of sub-s. (1) relating to foreigner to which it is not necessary for the present purposes to refer. As soon as an order is made under s. 3, the provisions of s. 8 come into play. Section 8 on true construction of which our decision of these petitions will depend runs as follows :-

1956 Abdul Jabar Butt v.

Stale of Jammu & Kashmir DasC.J.

StaU qf Jamt1W & Kashmir Das C.].

SUPREME COURT :REPORTS

8. ( 1) When person is detained in pursuance of detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making repre-sentation against the order to the Government :

Provided that nothing contained in this sub-section shall apply to the case of any person detained with view to preventing him from acting in any manner prejudicial to the security of the State if the Government by order issued in this behalf declares that. it would be against the public interest to communicate to him the grounds on which the detention order has been made.

(2) Nothing in sub-s. (l) shall require the authority to disclose facts which it considers to be against the· public interest to disclose.

Sub-section (1) without the proviso is only repro-duction in substance of the provisions of cl. ( 5) of Art. 22 of the Constitution.

Sl!b-section ( 1) imposes on the Government two-duties, namely, (i) the duty of communi~ating to the detenue the grounds on which the order has been made· ·and (ii) the duty of affording him the earliest oppor-tunity of making representation against the order to-the Government. The first duty is to be performed 'as soon as may be'. Quite clearly the period of time predicated by the phrase 'as soon as may be' begins to run from the time the detention in pursuance of the· detention order begins. The question is-what is the span of time, .,which is designated by the words 'as. soon as may be'_? The observations of Dysant, J., in King's Old Country, Ltd. v. Liquid Carbonic Can. Corpn., Ltd.('), quoted in Stroud's Judicial Dictionary, 3rd edition, vol. 1. page 200, are apposite. Said the learned Judge, "to do thing 'as soon as possible'· means to do it within reasonable time, with an understanding to do ·it within the shortest possible time." Likewise to communicate the grounds 'as soon as may be' may well be said to mean to do so (1) (1942) 2 W.W.R. 6o3, 6o6.within reasonable time with an understanding to do it within the shortest posSible time. What, however, is to be regarded as reasonable time or the shortest possible time? The words 'as soon as may be' came for consideration before this Court in Ujagar Singh v. The State of the Punjab(1 ). At pages 761-762 this Court observed that the expression meant with "reasonable despatch" and then went on to say that "what was reasonable - must depend on the facts of each case and no arbitrary time limit could be set down." In Keshav Nilakanth foglekar v. The Commissioner of Police Greater Bombay and 2 Others( [2 ]) the word "forthwith" occurring in s. 3(3) of the Indian Preventive Detention Act (IV of 1950) came up for ' consideration. After observing that the word "forthwith" occurring in s. 3(3) of that Act did not mean the same thing as "as soon as may be" used in s. 7 of the same Act and that the former was more l?eremptory than the latter, this Court observed that the · time that was allowed to the authority to communicate the grounds to the detenue and was predicated by the expression 'as soon as may be' was what was "reasonably convenient" or "reasonably requisite." Whenever the question of reasonableness arises in computing the period of time the Court has perforce to have regard to the particular circumstances of the case in which the question arises for decision. It may not be possible in many cases to · affirmatively say or to precisely quantify the period of time by reference to hours, days, or months; never-theless, it is possible having regard to the circumstances of the case, to say whether the thing done was or was not done 'as soon as may be' i.e., within the time which was reasonably convenient or requisite. It cannot be disputed and indeed it has not been disput-ed by the learned Attorney-General that sub-s. ( 1) does prescribe period of time within which the com-munication is to be made and this time begins to run from the date the detention under the order takes effect.

(1) [1952) S.C.R. 756,

(2) Supreme Court Petition No. 102 of 1956, decided on September 17, 1956.

~·tlul Jabar Blllt v.

State of ]ammtJ & Kashmir Dru C.J.

1956 Abdul Jabar Butt v.

State of Jammu & Kashmir DasC.J.

The proviso to sub-s. (1), however, makes the entire sub-s. (1) inapplicable in certain circumstances~ namely, (i) where person is detained with view to prevent-ing him from acting in any manner prejudicial to the security of the State and (ii) the Governmenf by order issued in that behalf declares that it wou!<l be against the public interest to communicate to him the grounds on which the detention order has been made. The learned Attorney-General contends ·that the proviso in terms does not specify any time within which this power is to be exercised by the Government, that is to say, it does not specify any time within which the Government must make the declaration and he con-tends that there is no reason to imoort the time limit laid down in sub-s. (1) into the proviso. So also it has been held by the Full Bench of the Jammu and Kashmir High Court in the case referred to above. Learned Attorney-General urges that this emission to ~pecify the period of time in the proviso was deliberate :ind is in consonance with the scheme of the Act. He starts · with the contention that the object of com-municating the grounds is to afford the detenue an opportunity to make representation to the Govern-ment against the order. He then refers to s. 10 which directs that the Government shall within 6 w.:eks from the date of detention under the order place before an Advisory Board constituted by it under section 9 the grounJs on which the order has been made and the representations, if any, made by the detenue and in case where the order has been made by an officer, also the report made by the officer under sub-s. (3) of s. 3. He next points out that this requirement of s. 10 is "subject to the provisions of s. 14." Then he takes us to s. 14 of the Act. That section provides that not-withstanding anything contained in this Act any person detained under detention order made in any of the classes of cases or in any of the circumstances therein mentioned may be detained or continued in detention without ohtaining the opinion of the Advi-sory Hoard for period longer than 3 months but not exceeding five years from the date of detention. The two classes of persorn who may be detained withoutobtaining the opinion of the Advisory Board -comprise persons who have been detained with view to pre-venting them from acting in any manner prejudicial to (i) the security of the State and (ii) the maintenance of public order. The cases of persons falling under these two classes are by sub-s. (2) of s. 14 to be reviewed within period ot months from the date of detention and thereafter at intervals of every 6 months if the detention continues, in consuitation with person possessing certain qualification who may be nominated in that behalf by the Government. Going back then to the proviso sub-s. (1) of s. (8) the Attorney-General points out that the declaration contemplated by the proviso can only be made in the case of person detained with view to preventing him from acting in any manner prejudicial to the security of the State. By virtue of s. 14 the case of such person will not go to the Advisory Board, but will have to be reviewed in consultation with the person nominated by the Government under s. 14. Therefore, it will be enough if the grounds are communicated to such detenue within 6 months from the date of detention when his case will°be reviewed under sub-s. (2) of s. 14. We arc unable to accept this line of reasoning as sound. In the first place it is fundamental rule of construc-tion that proviso must be considered with relation to the principal matter to which it stands as proviso. Therefore, the proviso in question has to be construed harmoniously with the provisions of sub-s. (1) to which it is proviso. As we have already mentioned, immediately after the making of the order, sub-s. (1) of s. 8 begins to operate. If the grounds arc not communicated to the detenue within the period of time described by the expression 'as soon as may be' the detenue 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 certain specified cases the proviso autho-rises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-s. (1). It, therefore, stands to reason and i~ consistent with

Abd~l Jabar Bult v.

Stol1 ef jammu & Karhmir DasC.J,

1956 .Abdul ]ab!JI' Butt v.

Stau of Jammu &"Kashmir Das C.J •.

the principle · of harmonious construction of _statutes that the power. of issliing declaration so as to prevent the unwanted result of the operation of sub-s. (I) should be exercised before that very result sets in. In the second place it will be recalled that the order . of detention may be made under s. 3(l)(a) of the Act · against person with view to preventing him from acting in any manner prejudicial to the four objects . enumerated therein. As soon as an order of detention is made under s. 3(l)(a), the authority making the order is ·by s. 8 ( 1) placed under the obligation to com-municate the grounds of the detention 'as soon as may be.' If no declaration is made under the proviso, s. 8(1) will operate in the case of every detenue to whichever of the four categories he may belong. The proviso enables the Government to prevent the application of sub-s. (1) to certain· class of detenues only. It follows that the detenues who do not fall within that clause must have the grounds communicated to them and there is · no . power given to the Government to exclude · the operation of sub-s. ( 1) from those cases. It will be noted that under the proviso the Government may excluded the application of sub-s. ( 1), only in the case of person who has been detained with view to prevent him from indulging in activities prejudicial to the security of the State and · o_nly if the Government , declares that it will be against. the public interest to communicate the grounds to him. Even if person has been detained on account 'ilf his activities being prejudicial to the security of the State the Govern-ment .cannot exclude the operation of sub-s. (1) from his case unless the Government is ·prepared to declare and declares that it would be again~t . the public inter-est to communicate to him the grm1nds on which the detention order has been made. Therefore, those persons who have been detained on . account of their activities being prejudicial to the security. of the State, but with regard to whom the Government cannot or does not think fit to declare that it would .be against the public interest to communicate to them the grounds, will continue to be governed by sub-s. ( 1) and such _persons, like the persons belonging to the other three

categories, will be entitled to · have the ·grounds com-municated · to them 'as soon as may ·be.' As such per-sons will be governed by sub-s. (1), it. becomes clearly incumbent upon the Government to decide within the time envisaged· bysub-s. (1) whether it should make the requisite declaration or not, for otherwise such per-sons will be seriously prejudiced .. Suppose the Govern-ment does not make declaration with regard to persons falling within that class within that time but subsequently decides that it would not be against the public interest to communicate to them the grounds, then the absence of such declaration under the . pro-viso . will bring about the unfortunate result that · those persons will be deprived of their valuable right · of having the grounds communicated to them 'as s.oon as may be' and to . have the earliest opportunity afford-ed to them of making . representation. 1n the context . of the. liberty of the subject we rp.ust adopt construc-tion which would have the .effect of preventing such an undesirable result.

that ·

Further under section 14 the person falling under the two categories mentioned therein "may" be .detain-ed or continued in detention without. obtaining · the opinion of an Advisory Board for period longer than 3 months. There is nothing to suggest that the cases of all .persons falling ·within the .two categories must necessarily not be referred to the Advisory Board, but must be reviewed under sub-s. (2). Persons ·against whom orders of detention are made with view to preventing them from acting in any ·manner prejudicial to the security of the State and with respect to whom the Government does not consider that . it would be against the public interest to communicate to them the grounds, will be entitled, under sub-s: (1), to have their. grounds 'as; soon as may be' and there is nothing to prevent the Government from sending their cases to-gether with the grounds ;md their representations, if any, to the Advisory Board under s. 10 of the Act. Therefore, with respect to such persons the grounds must be supplied 'as soon as may be' under sub-s. (1) and cannot be postponed for 6 months referred to in section 14.

Abrlul ]a~ar Butt v.

State of Jammu & Kashmir Das .. 'f.

1956 Abd~I Jabar Butt v. State ef Jamm• & Kashmir DasC.J.

Finally the review contemplated by sub-s. (2) of s. 14 is to be made "within" period of 6 months from the date of detention. There is no reason to hold that in every_case such review will be held on the last day of that period of 6 months. With regard to person falling within the category of persons whose activities are prejudicial to the security of the State but with respect to whom the Government does not think fit to make any declaration under the proviso, he would be entitled to have the grounds communicated to him 'as soon as may be' and he may immediately make such cogent and convincing representation to the Govern-ment as may induce the Government to release him forthwith without waiting for the last day of the 6 months.

Fpr reasons stated above we see no difficulty in con-struing the proviso as implying that the time for making the declaration should be co-terminous with the time fixed for communicating the grounds under sub-s. ( 1). When the detaining authority makes the order of detention, it specifies in the preamble to the order why the order is made, namely, whether it is made with- view to preventing the detenue from acting in any manner prejudicial to one or other of the four objects enumerated in s. 3(1)(a). If the Government can make up its mind. that the detention order is made against particular person on account of his activities being prejudicial to the security of the State, there is no reason why the Government . should not at the same time or 'as soon as may be' thereafter make up its mind as to whether or not it would be against the public interest to communicate to such person the grounds on which the detention order is made. In our opinion the authority vested in the Government to make declaration contemplated by the proviso must be exercised before the expiry of the span of time predicated by the expression 'as soon as may be' occur-ring in sub-s. ( 1). Such construction will ensure harmonious operation of ss. 8, 10 and 14. These aspects cf the matter do not appear to have been pointedly brought to the notice of the Full Bench of the Jammu and Kashmir High Court and in our opinion that deci. sion cannot be accepted as correct.

S.C.R. SUPREME COURT REPORTS

There is nothing in the affidavits filed by the res-pondent showing that there was any particular circum-stance or reason for which the declarations could not have been made earlier than June 30, 1956, when they were actually made. For reasons stated above the detention of the petitioners became illegal and they may well complain of having been deprived of their liberty otherwise than in accordance with procedure established by the Act, which embodies the funda-mental right guaranteed under Art. 22(5) of the Con-stitution. In the premises the petitioners are entitled to the relief they pray for. We accordingly allow both the petitions and direct the petitioners to be released forthwith.

Applications allowed.

1956 Abdul Jahar Bil# v. Stat• •f Jamm11 & Kashmir Das.C.J.

MOHAMMAD AFZAL KHAN

STATE OF JAMMU & KASHMIR (S. R. DAS C.J., BHAGWATI, VENKATARAMA AYYAP.., B. P. SINHA and S. K. DAs JJ.)

Preventive Detention-Decision by Government to continue such detention-If m1ut be communicated to the detem1e within three months of the Order of detention-/ammu 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 formal order and there is no scope for the contention that the decision of the Government thereunder that detention order should be continued must be communicated to the detenue concerned within three months of his detention.

Achhar Singh v. The State of the Punjab, Petition No. 359 of 1951, decided on October 22, 1951, applied.

Consequently, where, as in the instant ca5e, 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. 5-75 S.C. India/59