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PETITIONER: ABDUL JABAR BUTT

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR(with connected petition)

DATE OF JUDGMENT: 13/11/1956

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. DAS, S.K.

CITATION:  1957 AIR  281            1957 SCR   51

ACT: Preventive  Detention-Legality-Time Prescribed for  communi- cating  grounds of detention to the detenue-’As soon as  may be’,  Meaning  of-Declaration enabling Withholding  of  such communication, if must be made by Government  before  expiry of  such time-- Jammu and Kashmir Preventive  Detention  Act (IV of Sambat 2011),S.   s (1), Proviso.

HEADNOTE: The  two  petitioners were detained under S.- 3 (1)  Of  the Jammu  and  Kashmir Preventive Detention Act  on  April  26, 1956, with a view to preventing them from acting in a manner prejudicial  to the security of the State.  No grounds  were communicated  to  them  under s. 8 (1) of  the  Act  and  no declarations  were made under the proviso of  that  section. The  petitioners applied to the High Court under s.  491  of the  Code of Criminal Procedure and during 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 communicate 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                              52 reviewed  by  the  Government under s.14(2) of  the  Act  in consultation  with  a 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 communicating 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.  (1) of  s. 8 of the Jammu and Kashmir Preventive Detention  Act, whereby the Act prescribed the time within which the Govern- ment  must  communicate to the detente the  grounds  of  his detention,   meant  within  a  reasonable  time,  with   the

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understanding  to  do the act within the  shortest  possible time, from the date of detention. King’s  Old  Country, Ltd. v. Liquid Corbonic  Can.   Corpn. Ltd. (1942) 2 W.W.R. 603, followed. Ujagar  Singh v. The State of the Punjab, [1952] S.C.R.  756 and Keshab Nilkanth Joglekay v. The Commissioner of  Police, Gyeater  Bombay,  Petition  No.  602  Of  1956,  decided  on September 17, 1956, referred to. Although  it might not be possible in many cases to  compute the  span of time thus indicated by hours, days  or  months, what  was possible and the Court had to do in the facts  and circumstances  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 sub-section clearly  implied  that  the power  it  vested  in the Government  to  exclude  from  the operation  of the sub-section certain class of  detenues  by making the required declaration, must be exercised and  such declaration made before the expiry of the time prescribed by the sub-section for communicating to the detenue the grounds on which the detention order against him had been made. Hissam-Ud-Din Bandy and Others v. The State, A.I.R. 1935 J.& K. 7, overruled. Consequently,  as in the instant cases the affidavits  filed on   behalf  of  the  Government  disclosed  no   particular circumstance  or  reason  why  the  declarations  under  the proviso could not have been made before more than two months had elapsed from 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  does the  fundamental right guaranteed under Art. 22 (5)  of  the Constitution of India, and must be released forthwith.

JUDGMENT: ORIGINAL JURISDICTION : Petition Nos. 173 & 174 of 1956. 53 Under  Article  32  of the Constitution for a  writ  in  the nature of Habeas Corpus. J.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 delivered by DASC.J.-These  two  petitions  raise a  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  India, complaining  that  the petitioners have been and  are  being wrongfully  detained  under the Act and  praying  for  their immediate release. By  two  separate  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 Government had been satisfied with respect to each of the petitioners that with a view  to preventing  him from acting in a manner prejudicial  to  the security  of  the 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  a

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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 a writ  of habeas corpus.  During the pendency of those applications on June  30, 1956, that is to say, more than two  months  after the  date of the original order of detention, a  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 communicate  to  the  detenues  the  grounds  on  which  the detention orders had been made.  On July 28, 1956, both  the petitions were dismissed by the High Court.  It appears that the case of each of the detenues had                              54 been reviewed by the Government under sub-s. (2) of s. 14 of the  Act  in  consultation with a 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  a  Division Bench  of this Court on October 20,1956, when the  attention of the Court was drawn to a Full Bench decision of the Jammu and Kashmir High Court in Hissam-Ud-Din Bandy and Others  v. The  State (1), where it was held that though it was  highly undesirable that a detenue should remain in suspense,  there was  no  time  limit  fixed by  the  proviso  for  making  a declaration and that, therefore, where the detention was for reasons  of  security  of  State, the  mere  fact  that  the declaration’  had  been  delayed beyond  a  reasonable  time after  the date of detention did not vitiate the  detention. As  the decision of a Full Bench consisting of three  Judges required  consideration,  the Division Bench took  the  view that  the petitions should be placed before a larger  Bench. Hence  the  petitions  have  come 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) Order, 1954, made by the President  in exercise of the, powers conferred on him by cl. (1) of  Art. 370 of the Constitution.  Amongst other things in Art. 35 as (1)  A.I.R. 1955 J. & K. 7. 55 extended  to  Jammu  and Kashmir a  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 years from the commencement of the  said Order, except as respects things done or omitted to be  done before the expiration thereof." Therefore,  the  detention  of  the  petitioners  cannot  be

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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  petitioners’  detention will,  therefore, depend on and have to be considered  on  a 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 condition precedent to the making  of such  order  is that the Government must be  satisfied  with respect,  to any person that with a 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 a provision in cl. (b) of  sub-s. (1) relating to a 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 a true construction of which our  decision  of these petitions will depend runs as follows 56 8.   (1)  When  a  person  is detained  in  pnrsuance  of  a 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 a representation against the order  to the Government: Provided  that  nothing contained in this  subsection  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 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. (1) 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 a  reproduction in substance of the provisions of cl. (5) of Art. 22 of  the Constitution. Sub-section  (1)  imposes  on  the  Government  two  duties, namely,  (1)  the duty of communicating to the  detenue  the grounds  on which the order has been made and (ii) the  duty of   affording  him  the  earliest  opportunity  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.  (1),  quoted  in  Stroud’s  Judicial  Dictionary,  3rd edition,  vol. 1 page 200, are apposite.  Said  the  learned Judge, " to do a thing I as soon as possible means to do  it within  a  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. 603, 606

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57 within  a  reasonable time with an understanding  to  do  it within the shortest possible time.  What, however, is to  be regarded as a 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 a " 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  Joglekar v. The  Commissioner  of  Police Greater  Bombay  and  2 Other8 (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 peremptory 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;  nevertheless, 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 disputed by the  learned Attorney-General that sub-s. (1) does prescribe a period  of time  within which the communication 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. 8 58 The proviso to sub-s. (1), however, makes the entire  sub-s. (1) inapplicable in certain circumstances, namely, (1) where a  person  is detained with a view to  preventing  him  from acting  in  any manner prejudicial to the  security  of  the State and (ii) the Government by order issued in that behalf declares  that  it would 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  contends  that there  is  no reason to import 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  omission to specify the period of time in the  proviso was  deliberate and is in consonance with the scheme of  the Act.  He starts with the contention that the object of  com- muilicating  the  grounds  is  to  afford  the  detenue   an opportunity  to  make  a representation  to  the  Government against  the order.  He then refers to s. 10  which  directs that  the Government shall within 6 weeks from the  date  of detention  under  the order place before an  Advisory  Board

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constituted  by it under section 9 the grounds on which  the order has been made and the representation, if any, made  by the  detenue and in a 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 a 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  obtaining the opinion of the Advisory Board for a period longer than 3 months  but  not  exceeding  five years  from  the  date  of detention.   The two classes of persons who may be  detained without 59 obtaining the opinion of the Advisory Board comprise persons who  have been detained with a view to preventing them  from acting in any manner prejudicial to (1) the security of  the State and (ii) the maizitenance of public order.  The  cases of  persons falling under these,, two classes are by  sub-s. (2) of s. 14 to be reviewed within a period of 6 months from the  date of detention and thereafter at intervals of  every months  if the detention continues, in consultation  with  a 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 a person detained  with  a  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 a 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 a detenue within 6  months from  the date of detention when his case will  be  reviewed under  sub-s.  (2) of s. 14.  We are unable to  accept  this line of reasoning as sound. In the first place it is a fundamental rule of  construction that  a  proviso  must be considered with  relation  to  the principal   matter  to  which  it  stands  as   a   proviso. Therefore,  the  proviso  in question has  to  be  construed harmoniously  with the provisions of sub-s. (1) to which  it is  a  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 are 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 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 60 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. In  the second place it will be recalled that the  order  of detention may be made under s. 3(1)(a) of the Act against  a person  with  a 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(1)(a),

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the  authority making the order is by s. 8(1)  placed  under the  obligation to communicate 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 exclude the application of sub-s. (1), only in the case of a person who has been detained with a   view  to  prevent  him  from  indulging  in   activities prejudicial  to  the security of the State and only  if  the Government  declares  that  it will be  against  the  public interest  to  communicate  the grounds to him.   Even  if  a person has been detained on account of his activities  being prejudicial  to  the security of the  State  the  Government cannot  exclude  the operation of sub-s. (1) from  his  case unless  the Government is prepared to declare  and  declares that it would be against the public interest to  communicate to  him  the grounds 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 61 categories,  will  be  entitled to  have  the  grounds  com- municated to them ’as soon as may be.’ As such persons  will be governed by sub-s. (1), it becomes clearly incumbent upon the Government to decide within the time envisaged by sub-s. (1)  whether  it should make, the requisite  declaration  or not,   for   otherwise  such  persons  will   be   seriously prejudiced.    Suppose  the  Government  does  not  make   a 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 a declaration  under  the proviso will brings about the unfortunate result that  those persons  will be deprived of their valuable right of  having the grounds communicated to them ’as soon as may be’ and  to have  the earliest opportunity afforded to them of making  a representation.   In  the  context of  the  liberty  of  the subject  we must adopt a construction which would  have  the effect of preventing such’ an undesirable result. Further  under section 14 the person falling under  the  two categories mentioned therein "may" be detained or  continued in  detention without obtaining the’ opinion of an  Advisory Board  for a 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  a 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 together  with  the grounds  and their representations, if any, to  the  Advisor

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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. 62 Finally the review contemplated by sub-s. (2) of s. 14 is to be  made  "within"  a period of 6 months from  the  date  of detention.   There is no reason to hold that in  every  case such a review will be held on the last day of that period of 6  months.   With  regard to a  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 Government as may induce the Government  to  release him  forthwith  without waiting for the last day  of  the  6 months. For reasons stated above we see no difficulty in  construing 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 IV-he  order  is made,  namely, whether it is made with a 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 makeup its mind that the detention order  is made   against  a  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  )pinion  the  authority vested in the Government to make a 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’ occuring in sub-s. (1).  Such a construction will ensure Harmonious operation of ss. 8, 10 and 14.  These aspects  of the  matter do not appear to have been pointedly  bought  to the  notice of the Full Bench of the Jammu and Kashmir  High Court and in our opinion that decision cannot be accepted as correct. 63 There  is nothing in the affidavits filed by the  respondent showing that there was any particular circumstance or reason for which the declarations could riot 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 fundamental right guaranteed  under  Art. 22(5) of the Constitution.   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.