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PETITIONER: MOHAMMAD AFZAL KHAN

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR.

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  173

ACT: Preventive Detention-Decision by Government to continue such detention-If  must  be communicated to  the  detenue  within three  months  of the Order of detention Jammu  and  Kashmir Preventive Detention Act (IV of Sambat 2011), S. 14.

HEADNOTE: Section 14 of the Jammu and Kashmir Preventive Detention Act does  not in terms provide for the making of a formal  order and  there is no scope for the contention that the  decision of  the Government thereunder that a detention order  should be  continued must be communicated to the detenue  concerned within three months of his detention. Ackhar Singh v. The State of the Punjab, Petition NO. 359 of 1951, decided on October 22 1951, applied. Consequently, where, as in the instant case, the  Government was  satisfied  that  the activities  of  the  detenue  were prejudicial to the maintenance of public order and he should be  continued  in  detention under s. 14 of  the  Act,  such detention  could  not be challenged on the ground,  that  no order  under that section had been made or  communicated  to him within three months of his detention, 64

JUDGMENT: ORIGINAL JUIRISDICTION : Petition No. 181 of 1956. Under  Article  32  of the Constitution for a  writ  in  the nature of Habeas Corpus. T.   R. Bhasin, Amicus Curiae for the petitioner. 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 DAS   C.J.-This  is  a  petition  under  Art.  32   of   the Constitution  of  India  praying  for  an  order  that   the petitioner’s  detention be declared illegal and that  he  be set at liberty.  The facts are shortly as follows:

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On  June 30, 1954, the petitioner was arrested in  pursuance of  an  order of detention made on the same  day  under  the Jammu and Kashmir Preventive Detention Act No. 4 of (Sambat) 2011.   On July 1, 1954, the grounds on which the order  had been made were communicated to the petitioner.  On July  12, 1954,  the  petitioner submitted his representation  to  the Government.   Not  having  heard  anything  further  in  the matter, the petitioner made an application to the High Court of  Jammu and Kashmir under s. 491 of the Code  of  Criminal Procedure.  It appears that the Government had reviewed  the case  of  the  petitioner  under sub-s.  (2)  of  s.  14  in consultation  with  a person nominated for  the  purpose  on August  23, 1954, and was satisfied that he should  continue to  be  detained.  Accordingly during the  pendency  of  the habeas corpus petition before the High Court the  Government on  December 23, 1954, made an order under s. 14  continuing the detention of the petitioner.  Thereafter the  petitioner moved  the Vacation Judge of this Court under Art. 32.   The learned Vacation Judge was not satisfied that there was  any prima  facie ground for interference on the assumption  that the  Jammu and Kashmir Preventive Detention’ Act was  valid. As,   however,  the  constitutionality  of  that   Act   was challenged  the learned Judge directed a Rule to issue.   On September 9, 1955, however, the petitioner, alleging that  a certain decision had been made by the 65 Jammu  and Kashmir High Court which covered his case,  asked for   permission  to  withdraw  the  petition,   which   was accordingly  dismissed  as withdrawn.  In the  meantime  and thereafter  the  petitioner’s  case  was  reviewed  by   the Government and orders extending his detention were made from time  to time, the last of such orders having been  made  on June  8, 1956.  On May 25, 1956, he made a  second  petition before the Jammu and Kashmir High Court.  That petition  was dismissed on June 21, 1956, by the High Court.  There. after the present petition under Art. 32 was presented before this Court on September 26, 1956. The   learned  Attorney-General  has  taken  a   preliminary objection  that in view of the observations of the  Vacation Judge  as  to the merits of the case referred to  above  the present  petition in so far as it raises any question  other than  the constitutional point was not main tainable.   Shri T.  R. Bhasin, who has assisted us in this matter as  amicus curiae, draws our attention to a fresh petition filed by the petitioner  and assures us that he does not desire to  raise any  of the questions of fact raised in the first  petition, which had been withdrawn, but will confine his arguments  to the new points of law raised in the supplementary  petition. In view of the fact that this petition is concerned with the liberty  of a subject, we have considered it right  to  hear Shri  T. R. Bhasin on the new points sought to be raised  by him. Shri T. R. Bhasin raises two points, namely:- (1)  that  the  detention has become  wrongful  and  illegal inasmuch  as the order under s. 14 was not made  before  the expiration  of a period of three months after the  order  of detention; and (2)  that  the second ground of detention is wrong  inasmuch as  the Chief Secretary has admitted that there is  no  such hotel as Guest House hotel at Amira Kadal, where the detenue is alleged to have attended a meeting therein referred to. The second point was raised on account of the  typographical error in the copy of the Chief Secretary’s affidavit,  which was available to’ the learned counsel, 66

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In  point  of fact the Chief Secretary has  maintained  that there  is a Guest House hotel at Amira Kadal.  The  original affidavit  having been shown to the learned counsel, he  has abandoned the second point.  He,  however, presses the first point. Learned  counsel  draws our attention to Art. 22(4)  of  the Constitution.   That clause lays down that no law  providing for preventive detention shall authorise the detention of  a person  for a longer period than three months except in  the circumstances therein specified.  Sub-cl. (b) makes it quite clear  that  cl.  (4)  does not apply to  a  person  who  is detained  in accordance with the provisions of any law  made under  sub-cls. (a) and (b) of el. (7) by Parliament,  which in the case of Jammu and Kashmir has been substituted by the word   ’legislature  of  the  State’  by  the   Constitution (Application to Jammu and Kashmir) Order, 1954, made by  the President.    The  question  is  whether  the   petitioner’s detention has been properly continued be. yond the period of three  months  by virtue of the provisions of s. 14  of  the Jammu and Kashmir Preventive Detention Act. Shri  T.  R. Bhas in maintains that an order  must  be  made under s. 14 before the expiry of the period of three  months after the date of the order of detention.  Turning to s.  14 we find that it does not in. terms provide for the making of any  formal  order.   It  only  says  that   notwithstanding anything  contained in the Act any person detained  under  a detention  order  made in any of the two  classes  of  cases ’may’   be  detained  or  continued  in  detention   without obtaining  the  opinion of an Advisory Board  for  a  period longer than three months.  There is no specific provision in the section for making any order or even such a  declaration as  is  contemplated by the provio to s. 8(1).   Shri  T.  R Bhasin  then contends that at any rate the word  used  being "may’  it implies that the Government must make up its  mind and  when the Government so makes up its mind to  deal  with the petitioner’s case under s. 14, the fact of such decision should be communicated to the petitioner.  In point of  fact we find that the Government had appointed Shri A. H.  Durani for purposes of 67 consultation  under s. 14(2) on August 23, 1954,  which  was within  two months from the date of the order of  detention. It  is, therefore, clear on the record that  the  Government had  come  to  a decision with  regard  to  this  particular detenue against whom the order of detention, was made on the ground   of   his  activities  being  prejudicial   to   the maintenance  of  public order that he should be  dealt  with under s. 14 and that his case should not go to the  Advisory Board.   We  see  no warrant for the  contention  that  this decision  of  the  Government must be  communicated  to  the detenue.   It  has not been shown how the  communication  of this  decision  would have been beneficial to  the  detenue. Indeed  in the case of Achhar Singh v. The State  of  Punjab (1)  this Court has expressed the opinion that the  omission to  convey  the  order  made under s.  1  1  of  the  Indian Preventive Detention Act does not make the detention illegal or  result in infringement of the  petitioner’s  fundamental right.   If that be the position under s. 1 1 of the  Indian Preventive Detention Act, which provides for the making of a formal  order,  all the more must the position be  the  same under  s. 14 of the Jammu and Kashmir  Preventive  Detention Act, which does not in terms require any formal order to  be made.   In  our  opinion  there  is  no  substance  in  this application, which must accordingly be dismissed. Application dismissed.

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(1) Petition No- 359 Of 1951, decided on October 22, 1951. 68