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PETITIONER: ASHOK KUMAR BINNY AND HANSRAJ

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & OTHERS

DATE OF JUDGMENT10/12/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. VENKATARAMIAH, E.S. (J)

CITATION:  1982 AIR  978            1982 SCR  (2) 142  1982 SCC  (1) 174        1981 SCALE  (3)1890

ACT:      Jammu and  Kashmir Public Safety Act 1978 Section 16(1) scope of.

HEADNOTE:      The petitioners were detained under the Jammu & Kashmir Public Safety  Act 1978.  Their cases  were referred  to the Advisory Board,  which did  not submit its report yet to the Government, although  eight weeks from the date of detention had  already  expired.  It  was  argued  that  there  was  a violation of  sub section  (1) of  Section 16  of the Public Safety  Act   and  therefore,   further  detention   of  the Petitioners was invalid.      Accepting the petitions it was, ^      HELD: (1)  The petitioners  enjoy a  fundamental  right under Article  21 of  the Constitution not to be deprived of their  personal   liberty,  except  according  to  procedure established by  law. In  cases where a Government resorts to preventive detention,  Clauses (4)  to  (7)  of  Article  22 prescribe the conditions relating to preventive detention. A perusal of  these Clauses  will make it immediately apparent that  the  constitution  places  the  greatest  emphasis  on severely limiting  the period  of preventive  detention  and envisages time  bound stages for the processing of a case as it reaches  its determination.  The Jammu  & Kashmir  Public Safety Act  contains provisions which specify the successive stages and also prescribe the period within which each stage must be completed [143 H, 144 A-B]      2. It  is clear that the period prescribed by sub-s (1) of s.  16 of the Act for the submission of its report by the Advisory Board  has already  expired. Sub-s.  (1) of  s.  16 provides that  the Advisory  Board,  after  considering  the material before  it and such further material as it may deem necessary and  after hearing  the person  concerned, shall . submit its  report to the Government within eight weeks from the  date  of  detention.’  The  obligation  placed  on  the Advisory Board  to submit  its report  within the prescribed period must be construed strictly in as much as the personal liberty of  a person  is involved  and having  regard to the emphasis  which  the  Constitution  has  placed,  and  which emphasis is  reflected in  the  Act,  on  the  necessity  of

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expeditiously  determining  whether  the  detention  of  the person concerned should be continued. [144 B-F] 143       Shri  Mritunjoy Pramanik  v. The State of West Bengal, [1972] 2 S.C.C. 586, referred to.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  (Criminal)  Nos. 8333 and 8365 of 1981.      (Under article 32 of the Constitution of India)      Bhim Singh and P.D. Sharma for the Petitioners.      Altaf Ahmad for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.  The petitioners  Ashok Kumar Binny and Hans Raj have  been detained  by  the  Government  of  Jammu  and Kashmir under s. 8 of the Jammu & Kashmir Public Safety Act, 1978. They  have filed  these petitions  for a  writ in  the nature of habeas corpus directing their release.      The petitioner  Hans Raj  was detained  on 17th August, 1981 while  the petitioner Ashok Kumar Binny was detained on 1st October,  1981. It  is pointed  out that  although their cases have been referred to the Advisory Board, the Advisory Board has  not submitted  its report  yet to the Government, and as  eight weeks  from the date of detention have expired there has  been a  violation of  sub-s. (1)  of s. 16 of the Public Safety  Act. In  the circumstances,  it is urged, the further detention  of the petitioners is invalid. When these petitions were  called on  for  hearing,  Mr.  Altaf  Ahmed, appearing for  the respondents,  placed before us a wireless communication received  by him  from  the  State  Government stating the  Advisory Board  was programmed to sit today and instructing him  to seek  adjournment in these cases. We are unable to  grant the adjournment because it seems to us that any proceeding  now taken by the Advisory Board can be of no consequence in  supporting  the  further  detention  of  the petitioners.      The petitioners enjoy a fundamental right under Article 21 not  to be  deprived of  their  personal  liberty  except according to 144 procedure established  by law. In cases where the Government resorts to  preventive detention,  clauses  (4)  to  (7)  of Article 22  prescribe the  conditions relating to preventive detention.  A   perusal  of   these  clauses  will  make  it immediately  apparent   that  the  Constitution  places  the greatest  emphasis   on  severely  limiting  the  period  of preventive detention and envisages time-bound stages for the processing of  a case  as it  reaches its determination. The Jammu and  Kashmir Public  Safety  Act  contains  provisions which specify  the successive  stages and also prescribe the period within which each stage must be completed. Section 15 declares that  after a  detention order  has been  made  the Government must,  within four  weeks from  the date  of  the detention  order,  place  before,  the  Advisory  Board  the grounds on which the order has been made, the representation made by  the person  effected by  the order,  and where  the order has  been made  by an officer, also the report by such officer. Thereafter,  sub-s. (1)  of s. 16 provides that the Advisory Board, after considering the material before it and such further  material as  it may  deem necessary  and after hearing the  person concerned,  shall "submit  its report to the  Government   within  eight   weeks  from  the  date  of detention". The  obligation placed  on the Advisory Board to

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submit its  report within  the  prescribed  period  must  be construed strictly  inasmuch as  the personal  liberty of  a person is  involved and  having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the  Act, on  the necessity  of expeditiously determining whether the  detention of  the person  concerned  should  be continued.      In the  cases before  us, it  is clear  that the period prescribed by  sub-s. (1)  of s.  16  of  the  Act  for  the submission of  its report  by the Advisory Board has already expired. On  that ground  alone, it  must be  held that  the further detention  of the two petitioners is invalid. We are supported in  this view  by Shri  Mritunjoy Pramanik  v. The State of West Bengal.      We allow  these writ  petitions and direct the State of Jammu and  Kashmir and  other  respondents  to  release  the petitioners 145 Ashok Kumar  Binny and  Hans Raj  forthwith. Immediately  on their release,  the Chief  Secretary,  State  of  Jammu  and Kashmir, will  intimate to this Court that their release has been effected. N.K.A.                                    Petitions allowed. 146