18 December 1970
Supreme Court


Case number: Writ Petition (Civil) 384 of 1970






DATE OF JUDGMENT: 18/12/1970


CITATION:  1971 AIR 1217            1971 SCR  (3) 275  1971 SCC  (3) 225

ACT: Constitution  of  India,  1950  (as  applied  in  Jammu  and Kashmir)  Art.  35(c)-Effect on petitioner’s right  to  move Supreme Court under Art. 32. Jammu and Kashmir Preventive Detention Act, 1964 ss. 3(2), 5 and  proviso to s. 8-Direction not to disclose  grounds  of detention-If  copy of direction should be  served-Acting  in any  manner,  if takes in ’acting in a  manner’-Mistakes  in direction,  effect  of-Interest of secruity  of  State’,  if takes in ’public interest’.

HEADNOTE: By  an order under s. 3(2) read with s. 5 of the  Jammu  and Kashmir Preventive Detention Act, 1964, dated 9th May  1970, the petitioner was detained on 22nd May, 1970.  On the  same day,  in  pursuance  of a direction  made  by  the  District Magistrate  on 9th May 1970, under the proviso to s. 8,  the petitioner was informed that it was against the interests of the security of the State to disclose to him the grounds  on which  the  detention  order was made.   The  detention  was confirmed by the State Government. In a petition under Art. 32, HELD : (1)(a) The introduction of the provision contained in Art.  35(c), when applying the Constitution to the State  of Jammu  and Kashmir did not in any way affect the right of  a citizen  of Jammu and Kashmir to move the Supreme  Court  of India for an appropriate writ under Art. 32.  Its effect was only  that when approaching this Court the detenu could  not challenge the validity of the Act on the ground that any  of its  provisions contravened Art. 22.  Therefore, it  has  no bearing on Art. 32(4). [278 G-H] (b)  Further,  under  Art. 370 the President is  given  full discretion  to apply the Constitution with  such  exceptions and modifications as he may, by Order, specify.  At the time of applying the Constitution, no fundamental rights  existed in the State of Jammu & Kashmir and they came into existence in  the  modified form only by virtue of the  Order  of  the President  applying the Constitution.  ’Such a  modification at the initial stage cannot be challenged on the ground that it abridges any of the fundamental rights. [279 A-D]



(2)  When the petitioner was informed that it was not in the public interest to disclose the grounds to him there was  no need  to serve on him the copy of the direction under  which be was so informed. [279 F-G] (3)  The  present  case was not a case  where  the  District Magistrate  could be held to have passed the  order  without any  material at all.  The order recites that  the  District Magistrate  is satisfied that it is necessary to detain  the petitioner  with a view to preventing him ’from acting in  a manner  prejudicial to the security of the State.  That  the satisfaction  was  based on materials is  clarified  by  the order  of  the  Government confirming  the  detention  which mentions  that the District Magistrate had with  his  report sent  to  the Government the grounds on which  he  made  the order as well I,’, other relevant particulars. [280 C-E] (4)  The  expression ’acting in any manner’ used in the  Act covers  a  case  where  the  satisfaction  of  the  District Magistrate is that the person, in ’respect of whom the order is going to be made, is to be prevented from 276 acting  in  a  manner’ prejudicial to the  security  of  the State.   The  District  Magistrate, by using  the  word  ’a’ instead of word ’any’ as used in the statute has, therefore, not made an order which is outside the scope of the statute. [280 6-H.] (5)  The  order  of detention under s. 3 and  the  direction under the proviso to     s.  8 were passed by  the  District Magistrate on 9th May, out the petitioner    was    actually detained  on 22nd May.  The District Magistrate committed  a mistake by reterning to the petitioner as a person who  "has been  detained", in the direction, but that would not  imply that the detention was illegal. [281 C-E] (6)  The  proviso to s. 8 uses the words ’public  interest’. Any  action in the interest of the security of the State  is clearly  in public interest and so the direction  was  fully covered by the proviso. [281 F]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 384 of 1970. Petition  under Art. 32 of the Constitution of India  for  a writ in the nature of habeas corpus. S.   Lakshminarasu, for the petitioner. R.   N. Sachthey, for the respondent. The Judgment of the Court has delivered by Bhargava, J. Abdul Ghani has filed this petition under  Art. 32  of the Constitution praying for the issue of a  writ  of Habeas  Corpus,  alleging  that his  detention  in  jail  is illegal.   He  has been detained in pursuance  of  an  order passed by the District Magistrate of Poonch in the State  of Jammu  & Kashmir under section 3(2) read with section  5  of the   Jammu  &  Kashmir  Preventive  Detention   Act,   1964 (hereinafter  referred  to  as "the Act").   That  order  is reproduced below :-               "Whereas,  1,  Syed Mohammad  Shaffi  Andrabi,               IAS, District Magistrate, Poonch am  satisfied               that with a view to preventing Abdul Gani  s/o               Asdha Caste Rather Kashmiri Muslim r/o Chohana               P/S  Surankote District, Poonch,  from  acting               in-a manner prejudicial to the security of the               State, it is necessary so to do.               Now,  therefore,  in exercise  of  the  powers               conferred by section 3 (2) read with section 5               of  the Jammu & Kashmir  Preventive  Detention



             Act, 1964, 1, Syed Mohd. Shaffi Andrabi,  IAS,               District Magistrate. Poonch,   hereby   direct               that the said Abdul Gani be detained     in               Central Jail Jammu subject to such  conditions               as to maintenance of discipline and punishment               for  breaches  of  discipline  as  have   been               specified  in  the  Jammu  &  Kashmir   Detenu               General Order of 1968.               277               Issued this day the 9th May 1970 under my hand               and seal.               Sd S.M.S. Andrabi, IAS               District Magistrate, Poonch." The order was passed on 9th May, 1970, and on the same  day, the District Magistrate issued a direction under the proviso to section 8 of the Act which reads as follows :-               "Whereas  Abdul  Gani s/o Asdha  Caste  Rather               Kashmiri  Muslim  r/o  Chohana  p/s  Surankote               District   Poonch,   has  been   detained   in               pursuance  of  order No. 38/PDA/70  dated  9th               May,  ’70 made by me under section  3(2)  read               with   section  5  of  the  Jammu  &   Kashmir               Preventive Detention Act, 1964, with a view to               preventing him from acting in a manner  preju-               dicial to the security of the State and;               Whereas,  I  consider it  against  the  public               interest  to disclose the ground of  detention               to the said Abdul Gani s/o Asdha Caste  Rather               Kashmiri  Muslim  r/o Chohana  p/s  Surankote,               District Poonch.               Now, therefore, in pursuance of section 8 read               with  section 13-A of the said Act,  I  hereby               direct that the said Abdul Gani be informed it               is  against  the  security  of  the  State  to               disclose  to  him  the grounds  on  which  his               detention order was made.               Issued  this day the, 9th of May ’70 under  my               hand and seal.               Sd/ S. M. S. ANDRABI, IAS               Distt.  Magistrate Poonch." The petitioner was actually detained on the 22nd May,  1970, in pursuance of the detention order and, on the same day. he was informed that it is against public interest to  disclose to him. the grounds on which the detention order was made in pursuance of the direction made by the District  Magistrate, mentioned above.  On this information being conveyed to him, his  signatures were taken in token thereof on the  back  of the  paper  on which this direction had been issued  by  the District   Magistrate.   His  detention   was   subsequently confirmed  by  the State Government, after  the  grounds  on which  the  order had been made and  the  other  particulars having bearing on the matter had been examined by the  Chief Minister.  On these facts, learned counsel appearing for the petitioner has challenged the, validity of the detention  on seven different grounds. 278 The first ground is that, when the Constitution of India was applied to the State of Jammu & Kashmir by the order of  the President under Art. 370 of the Constitution, Article 35 was modified in its application to the State of Jammu &  Kashmir by adding clause. (c) which reads as follows :-               "35.  (c)  No law with respect  to  preventive               detention made by the Legislature of the State               of  Jammu & Kashmir, whether before  or  after               the    commencement   of   the    Constitution



             (Application to Jammu & 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 fifteen years from               the commencement of the said Order, except  as               respects  thing  done or omitted  to  be  done               before the expiration thereof". It  is by virtue of this clause (c) of Art. 35 as  contained in the Constitution applied to the State of Jammu &  Kashmir that the provisions of the proviso to section 8 and  section 13-A  of  the  Act cannot be challenged  on  the  ground  of contravening the provisions of Art. 22 of the  Constitution. This point was considered by a Bench of this Court in Sampat Prakash  v. State of Jammu & Kashmir and  Another,(1)  where the validity of the proviso to S. 8 and of s. 13A of the Act was  upheld.  Learned counsel has urged that, in that  case, the  Court left the question open whether Art. 35(c) of  the Constitution  had been validity or invalidily introduced  in the Constitution in its application to Jammu & Kashmir.  His argument  is  that this article was introduced by  an  order made  by the President in exercise of his powers under  Art. 370  and,  by  this provision, the fundamental  right  of  a detenu  to  seek  the remedy against the  detention  in  the Supreme  Court  of  India had been  abridged,  so  that  the application  of this provision was in contravention of  Art. 32(4) of the Constitution and, consequently, void. This submission made by learned counsel, on the face of  it, has no substance at all.  The introduction of the  Provision contained  in Art. 35(c), when applying the Constitution  to the State of Jammu & Kashmir, did not in any way affect  the right of a citizen of Jammu and Kashmir to move the  Supreme Court of India, for an appropriate writ under Art. 32.   The effect of that amendment only was that, when approaching the Supreme Court, the, detenu could not challenge the  validity of  the  Act  on  the  Lyround  that  any  provision  of  it contravened the provisions of Art, This modification in  the Constitution  had,  therefore.  no bearing at  all  on  Art. 32(4).  Further, under Art. (1) [1969] 2 S.C.R. 365. 279 370, the President is given the full discretion to apply the Constitution  with  such exception and modifications  as  he may,  by order specify.  It was at the initial stage ,  when applying  the Constitution to the State of Jammu &  Kashmir, that  this  modification  was  made in  Art.  35  This  was, therefore,   not   a  case  where  any  provision   of   the Constitution as already applied to Jammu & Kashmir was being modified  in which case only a question could arise  whether that modification was permissible.  The modification at  the initial stage of applying the Constitution itself cannot  be challenged  on  the  ground  that it  abridges  any  of  the fundamental   rights.   _At  the  time-  of   applying   the Constitution,  no  such fundamental rights  existed  in  the State  of Jammu and Kashmir.  They came into existence  only by  virtue  of  the  Order of  the  President  applying  the Constitution  and at that stage they came into force in  the modified form in which they were applied.  This point raised by learned counsel, therefore, has no force at all. The  second  point urged was that, in  the  direction  given under  the proviso to s. 8, the District  Magistrate  merely ordered that the petitioner be informed that it was not.  in ’Public  interest  to disclose the grounds of  detention  to him,  and failed to add a further direction that a  copy  of



that  order must be actually served on the  petitioner.   It was  urged that a copy of that direction in  writing  should have  been  delivered  to  the  petitioner  and,  for   this proposition,  reliance was placed on the, decision  of  this Court in Harikishan v. The State of Maharashtra & Others(1). That  case, however, has no application at all, because,  in that  case,  the  question that arose  was  whether  it  was necessary  that  a copy of the grounds of  detention,  which ’Were  quite lengthy, should be delivered to the  detenu  in addition to  those grounds being communicated  to  him  by being  read out and translatede In the present  case,  under the proviso to section 8, no grounds of detention have  been served  and. there is no question of the petitioner  knowing the  grounds  in detail id order to  make  a  representation against them.  He was only to be informed that it was not in the  public  interest  to disclose the  grounds.   For  such information,  there was no need that the copy of that  order must be served on him The third point urged raises a question of, fact.  According to  the Petitioner, he was never given this information  and his, signatures were taken on a blank sheet of paper.   This argument is based on assertion of wrong facts.  We have seen the original order issued under the proviso to section 8.At the time when the information in pursuance of. it was  given to the. (1)  [1962]Supp.2S.C.R.918. 280 petitioner,  an  endorsement was made on the  back  in  Urdu reciting the fact that the petitioner hack been informed  as directed  and  it  was  under  this  endorsement  that   the signature  of  the petitioner was taken.   The  petitioner’s signature is also in Urdu and the handwriting shows that  he can  read and write Urdu very well.  Since he signed  under, the endorsement, it is clear that he must have known what he was  signing and his assertion in the present case that  his signatures were taken on a blank paper is totally false. The  fourth point merged was that the  District  Magistrate, when making the order for detention, did not apply his mind, because  his  order does not mention the  existence  of  any materials  which could have impelled him to make, the  order of  detention  of the petitioner.  In the order  made  under section  3 of the.  Act, the existence of material does  not require  to  be  mentioned.   The  order  recites  that  the District  Magistrate  is satisfied that it is  necessary  to detain  the  petitioner with a view to preventing  him  from acting in a manner prejudicial to the security of the State. That  this satisfaction: was based on materials  is  further clarified  by  the order of the  Government  confirming  the detention which mentions that the District Magistrate to the Government the grounds  had, with his report, sent on  which the order had been made as well as well as other particulars having  bearing on the matter., It is, therefore not a  case where the District Magistrate can be held to have passed  an order without any material at all. The  fifth point. urged is that, in the order of  detention, the  District  Magistrate  has when giving  the  reason  for making  the order, stated that he  is satisfied that  it  is necessary to do so with a, view to preventing the petitioner from acting in "a" manner prejudicial to the security of the State,  while  section 3 of the Act mentions  that  such  an order  can  be  made, if the.  Government  or  the  District Magistrate is satisfied with respect to any person that it is necessary  to make the order with a view to  preventing  him from  acting in "any" manner prejudicial to the security  of the  State.   According  to learned, counsel,  the  District



Magistrate,  by using the word "a" before the word  "manner" instead  of the word "any" as used in the statute,  made  an order  which  is   outside the scope of  the  statute.   The argument  is clearly misconceived.  The expression  "acting, in any manner" used in the Act clearly. covers a case  where the  satisfaction  of the District Magistrate  is  that  the person, in respect of Whom the order is going to be made, is to be prevented from "acting in a manner" prejudicial to the security  of the State.  The point raised has merely  to  be stated to be rejected. 281 The sixth point argued was that, in the order containing the direction that the petitioner be informed that it is not  in public  interest to communicate the grounds of detention  to him, the District Magistrate has referred to the  petitioner as  one  who "has been" detained, which shows that,  on  9th May,  1970, when,,-this order was made, the  petitioner  was already   under  detention,  so  that  the  plea  of   the(, petitioner that he was actually in custody earlier than 22nd May,  1970,  is correct.  Since there was no  authority  for earlier detention, his detention must be held to be illegal. It  is  true that the language used in the order  under  the proviso  to section 8 is incorrect.  It is clear  that  both the  order of detention under section 3 and  this  direction under  the proviso to section 8 were passed by the  District Magistrate on the same day one after the other.  The proviso to  section  8 permits the District Magistrate to  make  the direction  at the same time when the order of  detention  is made  under  section  3,  and  this  is  what  the  District Magistrate  actually  did.   He appears  to  have  used  the expression  "has been" by mistake.  It has been  established by  affidavits  filed on behalf of the Government  that,  in pursuance of the order of detention dated 9th May, 1970, the petitioner  was actually detained on 22nd May, 1970 and  not before the order containing the direction under the  proviso to  section  8  was  issued.   The  use  of  this  incorrect expression does, not imply that the detention was illegal. The  seventh  and the last point urged was that,  under  the proviso  to section 8 of the Act, non-communication  of  the grounds  of  detention is permissible if  communication;  of grounds is against public interest, while, in the  direction made  by the district Magistrate, he has stated that  it  is against the interests of the security of the State.  This is mere quibbling.  Any action in the interest of the  security of  the  State is clearly in public interest,  so  that  the direction was fully covered by the proviso to section 8. None of the grounds urged,_thus, has any force.  The  deten- tion of the petitioner is valid.  The petition is dismissed. V.P.S.                    Petition dismissed. 282