http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SAMPAT PRAKASH

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT: 06/02/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1969 AIR 1153            1969 SCR  (3) 574  1969 SCC  (1) 562  CITATOR INFO :  R          1971 SC1217  (2)  RF         1973 SC 897  (7)  RF         1981 SC 746  (3,9)  F          1981 SC 814  (7)  R          1982 SC 710  (109)  RF         1982 SC1029  (14)

ACT: Jammu  and  Kashmir Preventive Detention Act (J &  K  13  of 1964)  as amended by Amending Act 8 of 1967, ss. 8(2) &  10- Order of detention without reference to Advisory Board-Order revoked at the end of 6 months and fresh order passed   with new  grounds-If mala fide-Indefiniteness due to  withholding of facts under s. 8(2)-If order vague.

HEADNOTE: On March 16, 1968 the petitioner was arrested and ordered to be detained under s. 3(1) (a) (1) of the Jammu and  Kashmir Preventive Detention Act, 1964.  On September 16, 1968,  the order  was revoked and another order was served on  him.  on September  24,  1968  the petitioner was  served,  with  the grounds  for  the  fresh order of  detention  His  case  was referred  to the Advisory Board on October 26, 1968 and  the Board recommended his detention.  Under s. 10 of the Act, as amended  by  s.  13A, of the Amending Act  8  of  1967,  the Government is required to refer a case to the Advisory Board within 60 days from the date of detention: In  a petition for the issue of a writ of habeas  corpus  it was contended that : (1) Since the case of,, the  petitioner was not referred to the Advisory Board within 60 days of the date  of  detention  (March  16,  1968)  the  detention  was invalid;  (2) The authorities acted mala fide in making  the detention  order;  (3) The grounds in support of  the  order were vague and indefinite; and (4) ’Mat his being  subjected to solitary confinement while in detention was illegal. HELD  :  (1)  There  was no reason  for  not  accepting  the statement  of the State that it was not intended,  when  the detention  order  of  March 16, 1968  was  passed  that  the petitioner  was to be kept in detention for a period  longer than 6 months.  Therefore, his case fell within the terms

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

of s.13A(1)which    provides    that    ’notwithstanding anything, contained in this Act a person may be detained for a  period  not longer than 6 months  without  obtaining  the opinion  of the Advisioiry Board.  In the present  case  the petitioner  was detained  under the first order   only for a period of 6 months when that order was revoked by the second order of detention. [579 C] (2)The grounds for the two-orders are not identical;  When the  first Order was passed the petitioner was not  intended to be detained for a period exceeding 6 months.  Thereafter, in  consequence of further information that  the  petitioner was  violent  by nature and was a perpetual  threat  to  the maintenance  of public order, the Government had to issue  a fresh  order.   Therefore.  it could not be  said  that  the Government acted mala fide inmaking either the original  or the fresh order. [579 G-H; 580 A-B]     (3)    The     order clearly  stated facts relevant to the grounds of  detention, except  those  which  Government considered  to  be  against public  interest to disclose.  Under s. 8 (2) it is open  to the  Government  to  withhold such facts.   Because  of  the withholding  of  such  facts the grounds  in  the  order  of detention could not be said to. be vague or indefinite. [580 C-E]                             575 (4)  Notwithstanding  the  broad principles of the  rule  of law,  equality and liberty of, the individual  enshrined  in the  Constitution,  it tolerates on account 1  the  peculiar conditions prevailing, legislation in relation to preventive detention, which is a negation of the rule of law,  equality and  liberty.   But  it is implicit  in  the  Constitutional scheme  that the Power to detain is not a power to  publish, and  the  restrictions placed must,  consistently  with  the effectiveness  of detention, be minimal.  Since a detenu  is not   a   convict  he  cannot  be  subjected   to   solitary confinement. [580]

JUDGMENT: ORIGINAL JURISDICTION:, Writ Petition No. 3 61 of 1968. Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpus. M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner. R. Gopalakrishnan and R. N, Sachthey, for the respondent. The Judgment of the Court was delivered by Shah,  J. On March 16, 1968 the petitioner was arrested  and ordered  to be detained under S. 3(1) (,a) (i) of the  Jammu and  Kashmir Preventive Detention Act 13 of 1964.  On  March 26, 1968, he was served- with the grounds of detention.   On May  3, 1968, the petitioner moved a petition for a writ  of habeas  corpus in this Court.  The petition was rejected  by this Court on October 10, 1968.  In the meanwhile the order dated March 16 1968, was revoked on September 16, 1968,  and another  order  was served upon the petitioner on  the  same day.  On September 24, 1.968, he was served with the grounds of detention for the fresh order, and his case was  referred to the Advisory.  Board on October 26, 1968.  On October 30, 1968, the Advisory Board recommended that the petitioner. be detained.   The  petitioner  then- moved  this  petition  on November 11, 1968 a writ of habeas corpus. Two contentions in the nature of preliminary objections were raised  in support of the petition.  It was urged  that  (1) the petitioner was, in spite of a specific request, denied a personal hearing before the Advisory Board, and (2) that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Chief  Minister who was in charge of the portfolio  relating to  preventive detention did not apply his mind to the  case of the petitioner before making the order of detention.   An affidavit  is  filed by the Secretary to the  Government  of Jammu  &  Kashmir  affirming that  the  petitioner  made  no request  for  production  before the Board  for  a  personal hearing.   He has also affirmed that the Chief Minister  did consider  the case of the petitioner and directed  that  the petitioner  be  detained  in custody  under  the  Preventive Detention  Act.  In view of this affidavit, counsel for  the petitioner did not press he two preliminary contentions. 576 Counsel  urged  that  the order  of  detention  was  invalid because (1)    that  the  case  of the  petitioner  was  not referred  to the Advisory board till September 24, 1968  and on that account his detention was invalid, and he could  not be continued in detention thereafter;(2) that in making  the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By  Art.  22  of  the  Constitution  certain  protection  is conferred  upon  persons who are detained  under  orders  of preventive  detention But Art. 35 (c) in its application  to the State of Jammu & Kashmir provides               "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  III)               Part, but any such law shall, to the extent of               such  in-consistency, cease to have effect  on               the  expiration  of  fifteen  years  from  the               commencement of the said Order, except   as               respects  things  done or omitted to  be  done               before the expiration thereof." The  protection  of cls. (5), (7) of Art.  22  insofar  the, provision  are  inconsistent therewith does  not  avail  the petitioner.   By s.3 the Government of Jammu and Kashmir  is entitled, if satisfied with respect to any person that  with a  view  to  Preventing  him  from  acting  in  any   manner prejudicial to the security of the State or the  maintenance of public order, to make an order direct that such person be detained.  By s. 8 it is provided :               "(1) 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  five  days from the date  of  detention,               communicate to him the on which the order  has               been  made and shall afford him  the  earliest               opportunity of making a representation against               the order to the Government.                (2) Nothing in sub-section (1) shall  require               the  authority  to  disclose  facts  which  it               considers  to be against the public  interest               to disclose."      Section  9 provides for the constitution  of  Advisory Board  and  S.  10 deals with  references  to  the  Advisory Board.that section the Government is required within  thirty days  from  the date of detention under the order  to  place before the Advisory Board the grounds on which the order has been made and the 577 representation, it any, made by the person affected by  the order. By s. 12 it is provided:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             "(1) In any case where the Advisory Board  has               reported   that  there  is  in   its   opinion               sufficient  cause  for  the  detention  of   a               person,   the  Government  may   confirm   the               detention order and continue the detention  of               the  person  concerned for such period  as  it               thinks fit.               (2)   In any case where the Advisory Board has               rePorted  that  there  is in  its  opinion  no               sufficient  cause  for the  detention  of  the               person concerned, the Government shall  revoke               the detention order and cause the person to be               released forthwith.,, Section  13 prescribes the maximum, period of detention  for which  any  person  may  be detained  in  pursuance  of  any detention  order.  Section 13A which was added by Act  8  of 1967  enables the State to detain a person for a  period  of two years.  Section 13A provides:               "(1)  Notwithstanding  anything  contained  in               this   Act, any  person  detained  under   a               detention  order made in any of the  following               classes of cases or under any of the following               circumstances  may  be detained for  a  period               longer than three months, but not longer  than               six  months,  from  the  date  of   detention,               without obtaining the opinion of any  Advisory               Board,  namely,  when  such  person  has  been               detained  with a view to preventing  him  from               acting in any manner prejudicial to (i)  the               ’security of the State; (ii)   the maintenance               of public order;               Provided  that where any such person has  been               detained  with a view to Preventing  him  from               acting  in  any  manner  prejudicial  to   the               security  of  the State grounds on  which  the               detention   order  has  been  made   are   not               communicated  to  him  under  the  proviso  to               section 8 (1), such person may be detained for               a  period  of  two  years  from  the  date  of               detention without obtaining the opinion of the               Advisory Board.               (2)   In  the  case of every  person  detained               with  a view to preventing him from acting  in               any manner prejudicial to the security of  the               State or the maintenance of public order,  the               provisions  of  this  Act  shall  have  effect               subject   to  the   following   modifications,               namely:-               (a)   in sub-section (3) of section 3, for the               words  ’twelve days’, the  words  ’twenty-four               days’ shall be substituted.               578               (b)   in sub-section (1) of section 8,-               (i)   for the words ’five days’ the words ’ten               day’s shall be substituted;               (ii)  the following proviso shall be  inserted               at the end, namely               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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             communicate  to him. the grounds on which  the               detention order has been made.’               (c)   in section 10,-               (i)   after the words, ’In every case where  a               detention order has been made under this  Act’               occurring  in the beginning, the brackets  and               words ’[other than a case to which the proviso               to  section 8(1) applies]’ shall be  inserted;               and               (ii)  for  the words ’thirty days’  the  words               ’sixty days’ shall be substituted,               (b)   in  section  1  1, for  the  words  ’ten               weeks’   the  words  five  months   shall   be               substituted." The effect of s. 13A insofar as it is relevant to this  case is to authorise the State in the cases specified to detain a person without obtaining the opinion of the Advisory  Board, if  he  is  to be detained for a period  longer  than  three months  but not longer than six months from  the  date  of detention.   By  sub-s. (2) the periods prescribed  for  the various  steps under the Act are doubled; for making  report to  the District Magistrate when he exercises the  power  of detention  the period is extended to twenty-four days :  for the  Government to serve the grounds of the order  under  s. 8(1)  the  period  is  extended to ten  days;  and  for  the Advisory Board to make its report in cases covered by s. 13A the period is extended to sixty days.  Again by the  proviso to s. 8(1) the Government is entitled to withhold in serving grounds  upon  the detenu that it would  be  against  public interest  to  communicate to him the grounds  on  which  the detention order has been made, Relying  upon the terms of s. 10(1) as amended by s. 13A  it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of  detention and’  since  no  reference was made  the  detention  of  the petitioner  under  the  order  dated  March  16,  1968,  was unauthorised.  This argu-                             579 ment is plainly unsustainable.  Section 13A opens with words "Notwithstanding  anything  contained  in  this  Act",   and provides  that  a person may be detained for a  period  not longer than six months without     obtaining the opinion  of the  Advisory  Board.  It is plainly   contemplated  thereby that  the  Government may decide not to refer  the  case  of the  detenu  to the Advisory Board, because the  period  for which  he  is to. be detained is not to exceed  six  months. Section 13A is an exception to S. 10 as well as to all other relevant  provisions of the Act, and in case  of  conflicts. 13A  prevails.  The, petitioner was detained for six  months from March 16,.1968 to September 16, 1968 without  obtaining the opinion of the Advisory Board.  We will be justified  in accepting the contention of the State that it was  intended, when the order was pass detaining the petitioner that he was not  to  be kept in detention for a period longer  than  six months and his case fell within the terms of s. 13A (1)  and on  that account it was not necessary to obtain the  opinion of the Advisory Board. It  was said by counsel for the petitioner that the plea  of the  State was inconsistent with the course of  events,  and the State Government had taken shelter under the  provisions of S. 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or ’within six  months.   The Court will not be justified  in  assuming from  the  circumstance that a fresh order has  been  issued that  the Government acted mala fide in making the  original

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

order  or  the  fresh order.  The only plea  raised  by  the petitioner  in support of that plea is in paragraph- 1 5  of the p etition, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the  petitioner was "a part and parcel of the scheme of  the State  to  suppress the peaceful trade union  movement,  and that the fresh order of detention was passed mala fide.   No particulars are furnished which justify an inference that in resorting  to  the provisions of the  Act  the  Government’s action was actuated by ill-will or taken for some collateral purpose. Reliance  was also placed upon the recitals ’in the  grounds supplied  to the petitioner on March 16, 1968 and under  the fresh detention order dated September, 16, 1968, and it  was contended  that  the grounds being  identical  an  inference followed that the previous detention order was continued  on the same grounds on which the original order was passed.  On comparing  the  grounds  it cannot be  said  that  they  are identical.  It is stated in the last part of the Annexure to the  grounds  of detention under order dated  September  16, 1968,  that  from the middle of January to  March  1968  the petitioner  went underground and during that period he  used to  attend secret meetings in which he used to  stress  upon the Government employees that their demands cannot be 580 conceded  by the, Government unless they resort to  violence that  the  petitioner  was  violent  by  nature  and  was  a perpetual  threat  to the maintenance of public  order.   It cannot  also be said that merely because the previous  order had been passed under which the ’Petitioner was intended  to be  detained  for a period of six months and  thereafter  In consequence  of  further  information  the  Government   was required to issue a fresh order, the original order ,or  the fresh order was illegal. The  plea that the grounds were vague and indefinite  cannot also  be  accepted.   It is recited in the  order  that  the Petitioner  was informed that his detention was  ordered  on grounds  specified in the Annexure appended  thereto,  which also contained facts relevant thereto except those which the Government  considered  to  be against  public  interest  to disclose.   By virtue of sub-s. (2) of s. 8, it is  open  to the Government not to disclose,, facts which it considers to be ag ainst the public interest to disclose.  In the present case  the order clearly states that’ the Government were  of the  view  that facts relevant to the grounds  except  those which  the  Government  considered  to  be  against   public interest to disclose  were intimated to the petitioner.  The Annexure  may  appear somewhat indefinite and  vague.   But, that  is  obviously because facts which in the view  of  the Government,  were against public interest to disclose,  were withheld from the petitioner.  The Government have power  to withhold  information  about those facts, and they  did  so. The grounds cannot in the circumstances be said to be  vague and indefinite. One  more question needs to be dealt with.   The  petitioner who was present in the Court at the time ’of hearing of this petition  complained  that  he  is  subjected  to   solitary confinement while in detention.  It must be emphasized  that a,   detenu   is   not   a   convict.    Our   Constitution, notwithstanding  the  broad principles of the rule  of  law, equality  and liberty of the individual  enshrined  therein, tolerates,  on  account of peculiar  conditions  prevailing, legislation which is a negation of the rule of law, equality and  liberty.   But  it is implicit  in  the  Constitutional scheme that the power to detain is not a power to punish for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

offences  which  an executive authority  in  his  subjective satisfaction believes a citizen to have committed.  Power to detain  is primarily intended to be exercised in those  rare cases  when  the larger interest of the  State  demand  that restrictions shall be placed upon ’the liberty of a  citizen curbing  his  future activities The restrictions  so  placed must,  consistently with the effectiveness of detention,  be minimal. The petition fails and is dismissed. V.P.S.                    Petition dismissed. 581