FAZAL HUSSAIN AND ARSHAD AHMAD versus THE STATE OF JAMMU AND KASHMIR

l<'AZAL HUSSAIN AND ARSHAD AHMAD

THE STATE OF JAMMU AND KASHMIR

July 29, 1969

(S. M. Suw, G. K. MITTER AND K. S. HEGDE, JJ.)

J11mmu and K~hmir Pre»entive Detention Act, 1964 s. 3(1 )(a) (i) and s. 8-lnfor1na11on to detenu that it would be against puhlic interest to communicate grounds of detenJion to him-It must be given lvithin 10 dars.

In pelilion under article 32 of the Constilution the firs! petitioner'• <le1enlion under s. 3 (I )(a)(i) of the Jammu and Kashmir i'revenlive Dctenlion Ac!, 1961 was challenged as illegal on the basis thal no grounds of dclention were served on him but that an order infornJing bin1 that it \\·oul<l be against public interest to disclose the grounds to ilim was scrvrd on him after the expiry of 10 days prescribed in section S; it 'Nas con-tended that his detention was, therefore. iJlegal.

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 lhl'- service of the order of detention and an order under the proviso to Sc!Ction 8 was swora. to by an Additional Secretary on the basis of information <ll!rived from the record of the case and not by the Jail Superintendent who wa!. i.lleg~d to have served the orders on the dctenu.

HELD : (I) The delenlion of !he firs! pe1i1ioner was illegal and he mu.;;t be released.

i' the duty of the detaining authority to communicate the j..rounds 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 infonns the detenu under the proviso •vithin I 0 days of the de1en1ion. the delention would becnme illogd a"d subse-quent order under the proviso would not have the effect of rendC"ring the dclcnlion legal.

Abdul Jabar Butt v. Srate of lammu and Kashmir, [1957) S.C.R. 51, 59.

(2) The petition filed by !he second petitioner must be dismissed.

The State had annexed to its affidavit copy of the Government deten-tion order on which the Jail Superintendent had endorsed the f:ict of its 5crvice. In view of this it was not necessary for the Superintendent to have filed an affidJvit of having effected service.

ORIGINAL JURISDICTION : Writ Petition No. 111 of 1969.

Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpur.

R. K. Garff ~ Anil Kumar Gupta, for the petitioners.

R. Gopalakrishnan an:I R. N. Sachthey, for the re~ndent.

The Judgment of the co.urt was delivered by

Sikri, J. This is join~ petition by two detenues under art. 32 of the Constitution praying for the issue of 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(l)(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 Superinten-dent 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 th:it it would be against the public interest to· disclose the facts or tlie grounds of detention to him.

The learned cqunsel 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 ground,s of detention had expired.

Section 8 of the J ammu and Kashmir Preventive Detention Act, 1964, provides that "when person is detained in pursuance of detention order, the authority making the order shall, as soon as may be, but not later than ten days from the date of deten-tion, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of mak-ing representatidn 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 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 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 s. 8.

We are unable to accept this contention. There is no doubt that it is the duty of the detaining authority to communicate the

grounds within ten days of the date of detention if the case docs not fall .within the proviso. If the detaining authority neither communicates the grounds of detention nor informs the detcnu under the provi~o within I 0 days of the detention, the detention would become 11lcgal and subsequent order under the proviso would not have the effect of rendering the detention legal.

similar point arose before this Court in Abdul Jabar Butt y. Stale of lammu & Kashmir('). This Coun was then consider-ing 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 de-tenu within the period of time prescribed by the ex-pression "as soon as may be" the detenu becomes de-prived 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 authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-s. (I). It. therefore, stands to rea-son and is consistent with the principle of harmonious construction of statutes that the power of issuing de-claration so as to prevent the unwanted result of the operation of sub-s. (I) should be exercised before that very result sets in."

Although there is some change in the language in the presen• act in substance the provisions are similar as far as the present point is concerned. W arc here concerned with the liberty of subject and we must adopt 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 arc unable to sec 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 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, I 968, passe<I under

s. 3(1) read withs. 5 of the Jammu and Kashmir Preventive De-tention 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 dis-close 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, J ammu and Kashmir, Home Department, and it is stated in the verifica-tion 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 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 Hussai~ s/ o Ayub Khan detenu by reading over the same to him.

Sd/- Dy. Superintendent Central Jail, Jammu. 8/1"

Jn view of this endorsement existing on the order of deten-tion we do not consider that it was necessary that the Deputy Superintendent, Central Jail, should have filed an affidavit to the effect that he hac( served the order of detention on the detenu Fazal Hussain.

No other point is raised. The petition of Fazal Hussain acc-ordingly fails and 1 is dismissed.

R.K.P.S.

Petition dismissed_