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PETITIONER: SUNA ULLAH BUTT

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS.

DATE OF JUDGMENT16/08/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. DUA, I.D.

CITATION:  1972 AIR 2431            1973 SCR  (1) 870  1973 SCC  (3)  60  CITATOR INFO :  R          1974 SC 613  (25)  R          1974 SC1214  (7)  R          1975 SC 863  (5)  R          1984 SC1336  (7)  R          1990 SC1086  (13)

ACT: Jammu and Kashmir Preventive Detention Act 1964, s. 12-Order of  State  Govt. confirming detention whether  must  specify period  of  detention -Lack of  such  specification  whether vitiates detention.

HEADNOTE: The  petitioner  was detained under ss. 3(2) and  5  of  the Jammu & Kashmir Preventive Detention Act 1964 by an order of the  District  Magistrate.   According  to  the  grounds  of detention  supplied to the petitioner be was in the  service of  Pakistan  Intelligence  and  had  also  recruited  other persons   to   supply  military  information   to   Pakistan Intelligence.   After  the  Advisory  Board  had  given  its opinion holding that the detention was justified, the  State Government confirmed the order of detention.  The petitioner filed a writ petition under Article 32 of the  Constitution. The Court rejected the contention of the petitioner that  he was  already  In  custody when the order  of  detention  was passed.   The  Court also found that the activities  of  the petitioner  were  prejudicial to the security of  the  Slate within  the meaning of s. 3(i) of the Act.  On the  question whether  the failure of the State Government to specify  the period of detention introduced an infirmity in the detention of the petitioner, HELD : It is difficult to infer from the language of section 12 of the Act that the State Government while confirming the detention order should also specify the period of detention. AR that the section requires is that, if the Advisory  Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may  confirm the detention order.  There is nothing in the section  which enjoins  upon  the  Government  to  specify  the  period  of detention also while confirming the detention order.  [873E- F]

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Further  it is not always practicable and feasible ’for  the State  Government  at the time of confirming  the  detention order  to  specify the period of detention.   The  continued detention  of  the  detenu, subject to  the  maximum  period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances  including fresh developments  and  subsequent events  in deciding whether to keep the detenu in  detention for  the maximum period or to release him earlier.   It  has accordingly  been provided in sub-section (2) of section  13 of the Act that the State Government would have the power to revoke  or  modify the detention order at any  time  earlier than  the  expiry of two years from the date  of  detention. [873H-874A] Ujagar Singh v. The State of the Punjab, [1952], S.C.R. 756, applied.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 195 of 1972. Under  Article  32  of the Constitution  of  India  for  the enforcement of fundamental rights. Om Prakash, for the petitioner. R.   H. Dhebar and R. N. Sachthey, for the respondent. 871 The Judgment of the Court was delivered by Khanna  J. This is a petition through jail under article  32 of  the Constitution for issuing a writ of habeas corpus  by Suna  Ullah  Butt,  who has been  ordered  by  the  District Magistrate  Poonch  to be detained under section  3(2)  read with  section 5 of the Jammu & Kashmir Preventive  Detention Act,  1964 (hereinafter referred to as the Act) with a  view to preventing him "from acting in any manner prejudicial  to the security of the State". The order of detention was passed by the District Magistrate on  October 24, 1971, In pursuance of the  detention  order, the  petitioner was taken into custody the same day and  was explained  the  substance  of  the  detention  order.    The petitioner  was thereafter kept in Central Jail Jammu.   The grounds of detention were communicated to the petitioner  on November  1, 1971 in accordance with section 8 of  the  Act, which  requires that such grounds should be communicated  to the  detenu as soon as possible but not later than  10  days from  the  date of detention.  The order  of  detention  was approved by the Chief Minister, who was incharge of the Home Department,   on  November  12,  1971.   The  case  of   the petitioner was placed before the Advisory Board on  December 16,  1971.  The Board communicated its opinion  on  February 19, 1972 that the detention of the petitioner was justified. An order confirming the detention order was thereafter  made by the State Government on March 3, 1972 under section 12 of the Act.               The  grounds of detention gave  the  following               particulars               "You, Son Ullah s/o Khawaja Mahad Joo r/o  Sri               Chohana,  P/S Surenkot, District Poonch,  were               recruited  as  a  source by  Cap.   Kiani  and               Subedar Shah of Pak Intelligence in 1968, when               you  had  crossed over to POK and  settled  at               Palandri.               2.    Working as source of the above mentioned               officers, you introduced Abdul Ghani s/o  Asda               Rather resident of your own village, Rafiq s/o               Goffar  Joo r/o Poonch and Ghulam  Mohi-ud-Din

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             s/o  Karim  Joo  r/o  Seri  Chohana  with  Pak               Intelligence, who were recruited as sources by               them.   These  sources supplied  vital  Indian               Army informations to Pat Intelligence.               3.    You at the, instance of above  mentioned               officers  of Pak Intelligence crossed over  to               our  side  in Sept’ 1971 with the  purpose  of               further supplying Indian Army informations  to               Pak Intelligence.               In  view  of the, above your  activities  were               found extremely prejudicial to the security of               the State, hence               872               you  were detained under the J & K  Preventive               Detention Act, so that you are prevented  from               indulging in such nefarious activities." The petition has been resisted by the State of Jammu & Kash- mir  and  other  respondents,  and  the  affidavit  of  Shri Mohammad  Assin, Additional Secretary to the  Government  of Jammu  &  Kashmir,  Home  Department,  has  been  filed   in opposition to the petition. Arguments  have  been  addressed by Mr.  Om  Parkash  amicus curiae  on behalf of the petitioner, while  the  respondents have been represented by Mr. R. H. Dhebar. The first contention which has been raised by Mr. Om Parkash on  behalf  of  the petitioner is that he  was  arrested  on October  6,  1971  and  was  already  in  custody  when  the detention  order was made against him on October  24,  1971. It  is  stated that Be detention order can legally  be  made against  a person who is already in custody on the  date  of the  detention order.  It is, is our opinion, not  necessary to  express  an opinion on the abstract proposition  of  law that no detention order can be made against a person who  is already  in custody on the date of the making of such  order because,  in the present case, we find that  the  petitioner was  not in custody on October 24, 1971 when the  order  for his detention was made.  As no express ground had been taken by  the petitioner in his petition that the detention  order was legal because of his being in custody on the date of the making of that order, no averment was made in the  affidavit initially filed on behalf of the respondents on the point as to  whether the petitioner was or was not in custody on  the date  the detention order was passed.  When an  argument  on that score was advanced, we adjourned the case to enable the respondents to file affidavit on the point.  Two  affidavits have  thereafter  been filed on behalf of  the  respondents. According to the affidavit of Shri Krishanlal Gupta, Station House  Officer,  Police Station Poonch, the  petitioner  was arrested  on  October 6, 1971 in a case under  the  Internal Movement Control Ordinance, Public Security Act, Enemy Agent Ordinance and Indian Arms Act.  The petitioner was, however, released in that case on October 20, 1971.  It is further in the  affidavit of Shri Gupta that the petitioner was not  in the custody of the police on October 24, 1971 when the order for  his detention was made.  The other affidavit which  has been  filed  is  that of  Dr.  Ravindra  Gunta,  Officiating Superintendent  of  Central Jail Jammu.   According  to  Dr. Gupta,  the records show that the petitioner was brought  to Central Jail Jammu on October 26, 1971 in pursuance of order dated  October 24, 1971 of the District  Magistrate  Poonch. There  appears to be no cogent ground for  disbelieving  the statements contained in the affidavits of Shri 873 Krishanlal  Gupta  and Dr. Ravindra Gupta.  It  is  manifest from  these  two affidavits that the petitioner was  not  in

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custody on October 24, 1971 when the order for his detention was made by the, District Magistrate. The second contention of Mr. Om Parkash relates to the  fact that the period for which the petitioner was to be  detained hag not been mentioned in the order of the State  Government dated  March 3, 1972 confirming the detention order.  It  is urged  that the failure of the State Government  to  specify the  period  of  detention introduces an  infirmity  in  the detention  of  the  petitioner.   This  contention,  in  our opinion, is without any force.  According to sub-section (1) of  section  12 of the Act, 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. Section  13  of  the Act specifies  the  maximum  period  of detention.   According to that section, the  maximum  period for  which  a  person may be detained in  pursuance  of  any detention order, which has been confirmed under Section  12, shall  be  two  years from the date  of  detention.   It  is further  provided that nothing in the section  shall  affect the  power  of  the  Government  to  revoke  or  modify  the detention order at any earlier time.  It is, in our opinion, difficult  to infer from the language of section 12  of  the Act that the State Government while confirming the detention order should also specify the period of detention.  All that the  section  requires is that, if the  Advisory  Board  has reported  that there is,, in its opinion,  sufficient  cause for the detention of the person, the Government may  confirm the detention order.  There is nothing in the section  which enjoins  upon  the  Government  to  specify  the  period  of detention  also while confirming the detention  order.   The concluding words of subsection (1) of section 12,  according to  which the Government may continue the detention  of  the person  concerned for such period as it thinks fit,  pertain to  and  embody the consequence of the confirmation  of  the detention  order.  It is, however, manifest that the  period for which a person can be detained after the confirmation of the  detention order is subject to the limit of  two  years, which is the maximum period of detention for which a  person can be detained, vide section 22 of the Act. Apart  from the above, we are of the opinion that it is  not always practicable and feasible for the State Government  at the  time of confirming the detention order to  specify  the period of detention.  The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon  a  variety of factors and the State  Government  would have  to take into account all the  circumstances  including fresh developments and subsequent events in deciding whether to keep the detenu in 874 detention for the maximum period or to release him  earlier. it  has  accordingly  been provided in  sub-section  (2)  of section  13 of the Act that the State Government would  have the  power  to revoke or modify the detention order  at  any time  earlier than the expiry of two years from the date  of detention. We may also mention in the above context that in the case of Ujagar  Singh  v. The State of the Punjab  (1)  this  Court, while  dealing  with a case under the  Preventive  Detention Act, held that nonspecification of any definite period in  a detention  order made under section 3 of that Act was not  a material omission as would render the order to be invalid. So  far  as the grounds of detention are  concerned,  it  is manifest  that  the activities of the  petitioner  mentioned

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therein are germane to the object for which detention can be ordered.   Sub-section (1) of section 3 of the Act  provides inter alia that the Government may 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 it is necessary so to do make an order directing that such  person be detained.  The activities of the petitioner mentioned  in the  grounds  of detention show that he was  having  contact with  Pakistan Intelligence Officers and was assisting  them in  securing vital information relating to Indian Army.   It is  obvious  that  the above activities  of  the  petitioner impinge upon the security of the State.  No legal  infirmity can consequently be found in the order for the detention  of the  petitioner  which was made with a view to  prevent  him from acting in any manner prejudicial to the security of the State. The petition consequently fails and is dismissed. G. C.                                           Petition dismissed. (1) (1952) S.C.R. 756. 875