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PETITIONER: FAZAL HUSSAIN AND ARSHAD AHMAD

       Vs.

RESPONDENT: THE STATE OF JAMMU AND KASHMIR

DATE OF JUDGMENT: 29/07/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. MITTER, G.K. HEGDE, K.S.

CITATION:  1970 AIR 1870            1970 SCR  (1) 684  1969 SCC  (2) 356

ACT:     Jammu  and  Kashmir Preventive Detention  Act,  1964  s. 3(1)(a)(i) and s. 8--Information to detenu that it would  be against public interest to communicate grounds of  detention to him--It must be given within 10 days.

HEADNOTE:     In  a petition under article 32 of the Constitution  the first  petitioner’s  detention under s.  3(1)(a)(i)  of  the Jammu  and  Kashmir   Preventive  Detention  Act,  1961  was challenged  as  illegal  on the basis  that  no  grounds  of detention were served on him but that an order informing him that  it  would be against public interest to  disclose  the grounds to him was served on him after the expiry of 10 days prescribed in section 8; it was contended that his detention was, therefore, illegal.     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 the service of the order of detention  and an  order under the proviso to section 8 was sworn to by  an Additional  Secretary  on the basis of  information  derived from   the  record  of  the  case.  and  not  by  the   Jail Superintendent who was alleged to have served the orders  on the detenu.     HELD:  (1)  The detention of the  first  petitioner  was illegal and he must be released.     It is the duty of the detaining authority to communicate the  grounds  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 informs  the  detenu  under  the proviso within 10 days of the detention, the detention would become  illegal  and a subsequent order  under  the  proviso would not have the effect of rendering the detention legal. Abdul  Jabar  Butt  v. State of Jammu  and  Kashmir,  [1957] S.C.R. 51,59.     (2) The petition filed by the second petitioner must  be dismissed.     The  State  had annexed to its affidavit a copy  of  the Government detention order on which the Jail  Superintendent

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had  endorsed the fact of its service.  In view of  this  it was  not necessary for the Superintendent to have  filed  an affidavit of having effected service.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition No. 111 of 1969.     Petition under Art. 32 of the Constitution of India  for a writ in the nature of habeas corpus.     R.K. Garg and Anil Kumar Gupta for the petitioners.     R. Gopalakrishnan and R.N. Sachthey, for the respondent. 685     The Judgment of the court was delivered by     Sikri,  J.   This is a joint petition  by  two  detenues under art. 32 of the Constitution praying for the issue of a 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(1)(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 Superintendent 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 that it would be against the public interest to disclose the facts or the grounds of detention to him.     The  learned  counsel  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 grounds  of  detention  had expired.     Section 8 of the Jammu and Kashmir Preventive  Detention Act,  1964,  provides  that "when a person  is  detained  in pursuance  of  a detention order, the authority  making  the order shall, as soon as may be, but not later than ten  days from  the date of detention, 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."  But the proviso to s. 8 states:                   "Provided  that  nothing  in  this    sub-               section 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 authority making               the order, by the same or a 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     We  are unable to accept this contention.  There  is  no doubt  that  it is the duty of the  detaining  authority  to communicate the 686 grounds within ten days of the date of detention if the case does  not  fall  within  the  proviso.   If  the   detaining authority neither communicates the grounds of detention  nor informs  the detenu under the proviso within 10 days of  the detention,   the  detention  would  become  illegal  and   a

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subsequent order under the proviso would not have the effect of rendering the detention legal.     A  similar point arose before this Court in Abdul  Jabar Butt  v. State of Jammu & Kashmir(1).  This Court  was  then considering  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   detenu   within  the  period   of   time               prescribed  by the expression "as soon as  may               be"   the  detenu  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 a  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 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."     Although  there  is some change in the language  in  the present  act in substance the provisions are similar as  far as  the present point is concerned.  We. are here  concerned with  the  liberty  of  a  subject  and  we  must  adopt   a 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 are unable to.  see  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  a 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,  1968, passed under (1) [1957] S.C.R. 51, 59. 687 s.  3(1) read with s. 5 of the Jammu and Kashmir  Preventive Detention  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  disclose 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,  Jammu  and  Kashmir,   Home Department, and it is stated in the verification 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 a copy of the Government Detention Order and below

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the detention order the following endorsement exists:     "The  notice  of this order has been  served  upon  Shri Fazal  Hussain  s/o Ayub Khan  detenu  by reading  over  the same to him.                         Sd/-Dy.                         Superintendent                         Central Jail, Jammu                         8/1"      In view of this endorsement’ the order of detention  we do  not  consider  that it was  necessary  that  the  Deputy Superintendent, Central Jail, should have filed an affidavit to  the effect that he had served the order of detention  on the detenu Fazal Hussain.     No other point is raised.  The petition of Fazal Hussain accordingly fails and is dismissed. R.K.P.S.         Petition dismissed. 588