http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: VIJAY KUMAR

       Vs.

RESPONDENT: STATE OF J & K & OTHERS

DATE OF JUDGMENT17/03/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ISLAM, BAHARUL (J)

CITATION:  1982 AIR 1023            1982 SCR  (3) 522  1982 SCC  (2)  43        1982 SCALE  (1)240  CITATOR INFO :  F          1982 SC1539  (7)  R          1982 SC1543  (13)  R          1982 SC1548  (5)  RF         1987 SC2098  (7)  R          1989 SC1403  (8,10,11)  R          1989 SC1861  (18)  R          1989 SC2027  (18)  RF         1990 SC1196  (10)  RF         1990 SC1202  (6)

ACT:      Jammu &  Kashmir Public Safety Act, 1978-Section 13(1)- Detaining  authority   must   give   the   detenu   earliest opportunity of  making representation-  Forwarding  detenu’s representation to  Government-Jail authorities-Mere  channel of communication-Delay  in transit-No  excuse for  delay  in dealing  with  representation-Unexplained  delay-Invalidates order of detention.

HEADNOTE:      The petitioner  has arrested on June 26, 1981 under the Enemy  Agent   ordinance.  The   Chief  Judicial  Magistrate rejected his  application for bail on the ground that he had no  jurisdiction  to  try  him.  The  Addl.  Sessions  Judge rejected his  bail application  on the ground that as ha was by then ordered to be detained under the J & K Public Safety Act the bail application has become infructuous.      The detention  order dated  July 11, 1981 was served on the detenue  in jail  on July  15, 1981.  His representation dated July  29, 1  981 was forwarded to the State Government on July  29, 1981  and simultaneously a wireless message was sent on the same day. The representation was received by the Government on August 12, 1981. After investigations the file was put  up to  the Chief  Minister on  August 28,  1981 for approval. The  Chief Minister rejected the representation on August 31,  1981 which was communicated to the petitioner in jail on September 1, ]981. The detenu’s case was referred to the Advisory  Board  on  August  3,  1981.  Its  report  was submitted on September 4, 1981.      In this  petition under  art. 32 of the Constitution it was contended  before this Court on behalf of the petitioner that as  section 13 (1) of the Jammu & Kashmir Public Safety

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

Act 1978 imposes an obligation on the detaining authority to give  the  detenu  the  earliest  opportunity  of  making  a representation  against   the  detention   order  the   long unexplained delay  in this case had invalidated the order of detention.      Allowing the petition, ^      HELD: The  petitioner’s  representation  had  not  been dealt with as expeditiously as possible. There was therefore contravention of section 13 of the Act which invalidated the detention. [532 D]      Preventive detention,  unlike punitive  detention, does not afford  an opportunity to the detenu to explain his side of the matter before he is deprived 523 Of his liberty and therefore the statute makes it obligatory on the  authorities to A afford him the earliest opportunity to represent  his case and a corresponding obligation on the authority  to   consider  the   representation.   The   word "earliest"  which  qualifies  the  term  "opportunity"  must equally qualify the corresponding obligation of the State to deal  with   the  representation   if  and   when  made   as expeditiously as possible. [529 H; 530 A-B]      The jail  authorities who  are merely  a  communicating channel have  to move  with promptitude  so that  sufficient guarantee of  affording earliest  opportunity of  making the representation and  the  same  reaching  the  Government  is translated into  action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely  saying that  time was  lost in transit. The State Government must  gear up  its own  machinery to  see that in these cases  the representation  reaches the  Government  as early as  possible and is considered by the authorities with equal promptitude.  Any unexplained delay would be denial of the statutory protection given to the detenu. [530 D-G]      In the  instant case  there were  two  time  lags:  the representation handed  in to the Jail Superintendent on July 29, 1981  reached the  Government on August 12, 1981 after a time  lag  of  fourteen  days  and  the  representation  was disposed of  on August 31, 1981 after a time lag of nineteen days and  the delay has not been explained on any convincing ground. [531 F, 532 B]      Khudi Ram Das v. State of West Bengal, [1975] 2 SCC 81, referred to.      Preventive detention  is resorted  to, to thwart future action. If  the detenu  is already  in jail  charged with  a serious offence,  he is  thereby prevented  from acting in a manner prejudicial to the security of the State. Where there is need to order preventive detention of a person already in jail the  detaining authority must disclose awareness of the fact that  the person  against whom  an order  of preventive detention is being made is to the knowledge of the authority already in  jail and yet for compelling reasons a preventive detention order needs to be made. [528 F-G]      In the  instant  case  there  is  nothing  to  indicate awareness of  the detaining  authority that  the detenu  was already in  jail for  more than 16 days and Yet the impugned order was  made. This  clearly exhibits  non-application  of mind and  would result in invalidation of the order. But the Court did not base its order on this ground. [528 G-H]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

9516 of 1981.           (Under article 32 of the Constitution)      Bhim  Singh,  P.D.  Sharma  &  Subash  Sharma  for  the      Petitioner.      M.N. Phadke and Altaf Ahmed for the Respondents, 524      The Judgment of the Court was delivered by      DESAI, J. On February 9, 1982 we made an order quashing the detention order dated July 11, 1981 made by the District Magistrate, Jammu  in exercise  of the  power  conferred  by Section 8  of The  Jammu and Kashmir Public Safety Act, 1978 (’Act’ for  short) and  we announced  that the reasons would follow. Here are the reasons.      The detenu Vijay Kumar was arrested on June 26, 1981. A petition was  moved on  his behalf before the Chief Judicial Magistrate Jammu  praying for releasing the detenu, on bail. This petition  for bail  appears to  have come up before the learned Magistrate  on July 4, 1981 when the following order was made:           "I have  heard the  advocate for the applicant and      perused the C.D. File. Put up for orders on 6.7.81."      When the  matter again  came up  on July  6, 1981,  the learned Magistrate made the following order:           "Although there was nothing in the C.D. File about      his (Petitioner)  involvement in  E.A.O. (Enemy  Agents      ordinance) on  4.7.81, but  today a detailed report has      been presented in which one of the offences of which he      is charged  is u/s  3, E.A.O.  which this  Court is not      competent to try. Hence this application is returned to      the applicant  for presentation  to  the  proper  court      alongwith report "      The detenu thereupon moved an application for releasing him on  bail before  the learned  Additional Sessions Judge, Jammu, who,  we are  informed,  was  competent  to  try  the accused  charged   with  an   offence  under   Enemy  Agents ordinance. His  petition for bail came up before the learned Additional  Sessions   Judge  on  July  11,  1981  when  the following order was made:           "This application  pertains to Vijay Kumar accused      who is  involved for  an offence under the Enemy Agents      ordinance which  is being  investigated by  the Counter      Intelligence   Police,   Jammu.   The   learned   Chief      Prosecuting officer  and the  learned counsel  for  the      accused have been heard. 525           During the course of arguments an order has been A      shown to me by the police that said Vijay Kumar accused      has now  been ordered  to be  detained under the Public      Safety Act.           In view  of this  order, this bail application has      become infructuous which is disposed of accordingly."      The detenu  was served  with the  detention order dated July 11, 1981 on the same day in jail because he was already in jail  from June  25, 1981. The grounds for detention were served on  him on  July 15,  1981. The  detenu submitted his representation  dated   July  29,   1981  addressed  to  the Secretary   the    Government   Home   Department   to   the Superintendent, Central  Jail, Jammu  where the  detenu  was detained. One  Shri K.D.  Sharma,  Incharge  Superintendent, Central  Jail  Jammu  has  stated  in  his  affidavit  dated February 6, 1982 that the representation of the detenu dated July 29,  1981 was  forwarded to  the Government at Srinagar vide  office  letter  No.  2595  dated  July  29,  1981  and simultaneously a  wireless message  No. 2596 on the same day was  also   sent  to  the  Government  intimating  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

representation of  the detenu  had  been  forwarded  to  the Government for appropriate action. Mr. K S. Salathia, Deputy Secretary to  the Government  of  Jammu  and  Kashmir,  Home Department, Jammu,  in his  affidavit dated February 9, 1982 has stated  that the  1 representation  of  the  detenu  was received from the Superintendent, Central Jail, Jammu in the office of  the Home  Department at  Srinagar on  August  12, 1981. The  department also  received the  comments of  S.P., C.I.D. Counter  Intelligence, Jammu  and thereafter the case was processed  on August  24, 1981 in the office of the Home Department at  Srinagar and  the file  was placed before the Home Secretary  on August 25, 1981, who recommended the same for approval  on August 28,1981 to the Chief Minister (Home) From the  same affidavit,  it further  transpires  that  the Chief Minister  rejected the  representation on  August  31, 1981  and  the  same  was  communicated  to  the  detenu  on September 1,  1981. In  the meantime, the case of the detenu was referred  to the  Advisory Board  on August 3, 1981. The Advisory Board  submitted its  report to  the Government  on September 4, 1981.      one Rattanlal, the brother of the detenu moved Petition No. 31  of 1981  for writ of Habeas Corpus in the High Court of Jammu  and Kashmir  at Jammu.  The petition  came up  for hearing before 526 the learned Single Judge, who by his judgment dated December 7, 1981  rejected the  same. Thereafter  the detenu  by  the present writ  petition, moved this Court under Article 32 of the Constitution for a writ of Habeas Corpus.      Section 8  of the Act prescribes grounds for detention, one such  ground being to prevent any person from ’acting in any manner  prejudicial to  the security  of the  State. The impugned order  of detention  recites  that  the  detenu  is detained with  a view  to preventing him from ’acting in any manner prejudicial  to  the  security  of  the  State.’  The expression ’acting in any manner prejudicial to the security of the  State’ has  been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using  or instigating,  inciting, provoking  or otherwise abetting the  use  offence,  to  overthrew  or  overawe  the Government established  by the  law in the State. The detenu contended before  the High  Court  that  accepting  all  the activities attributed  to  the  detenu  in  the  grounds  of detention at  their  face  value.  the  alleged  prejudicial activity would  not fall  within the ambit of the expression ’acting in  any manner  prejudicial to  the security  of the State.’ The  definition of  the expression as here in before extracted indicates  that the  person accused  of ’acting in any manner prejudicial to the security of the State’ must be shown to  be making preparations for using, or attempting to use, or  using or  instigating,  inciting  or  provoking  or otherwise abetting  the use  of force,  and the intention or motive for  the activity must be to overthrow or overawe the Government established  by law  in the  State.  The  learned judge of  the High Court following an earlier Division Bench judgment of  the same  High Court in Kharotilal v. State,(1) negatived  this   contention  of   serving  that  where  the Government accusation against the detenu is that he had been indulging  in   supplying  information   for  Pakistan  Army Intelligence and was passing on vital information pertaining to the  Army department etc. to that Agency, such activities were likely  to assist  Pakistan  in  any  armed  aggression against the  State and  were a threat to the security of the State. This  view needs  examination but as the argument was not pressed before us, we refrain from examining the same.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

    Number of  contentions were  advanced at the hearing of this petition  but we  propose to deal with only two of them which in our 527 Opinion go  to the  root  of  the  matter  and  which,  when accepted, in  our opinion,  would result  in invalidation of the order.      The first  contention is that the order of the District Magistrate suffers  from non-application of mind inasmuch as the date  on which he passed the impugned order of detention dated July li, 1981, the detenu was long before arrested and locked up in Jail on the allegation that he was suspected to have committed some offence under the Enemy Agents ordinance 8 of  Samvat Year  2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in  any manner prejudicial to the security of the State. The  District   Magistrate  passed  the  impugned  order  of detention on  being satisfied that with a view lo preventing the detenu  from acting  in  a  manner  prejudicial  to  the security of  the State  it was  necessary to detain him. The order ex  facie does  not show  that the detaining authority was aware  that the  detenu was already arrested and kept in jail. If  the detaining  authority was conscious of the fact that the  detenu was  already arrested and confined in jail, the order  ex facie  would have  shown that  even though the detenu was  in jail,  with a  view to  preventing  him  from acting in  a manner prejudicial to the security of the State it was  necessary to detain him. There is a foot note in the order that  the order  was forwarded  to the  S P.,  C.I  D. Counter Intelligence, Jammu for execution of the order under section 3  of the Act. The further direction was that notice of the  order shall  be given  to Vijay Kumar s/o Anant Ram, r/o H.  No. 609,  Peer Mitha,  Jammu, by  reading  over  and explaining the  same to  him in language he understands. The detention order  does not give the slightest indication that the detaining  authority  was  aware  that  the  detenu  was already in jail yet on the material placed before him he was satisfied that  a detention order ought to be made. There is nothing in  the order  to show  that to the knowledge of the detaining authority  the detenu  was already  in jail  for a period of  more than  lo days  before the  date on  which he passed the  order and  that such detention in the opinion of the detaining  authority was  not sufficient  to prevent the detenu from  acting in  a manner prejudicial to the security of the State, and therefore power under section 8 of the Act is required to be . exercised.      The detenu  in para 3 of his petition before this Court has specifically  averred that  he was  arrested on  June 26 1981, the correct 528 date being  June 25,  1981, under  a  false  and  fabricated charge. Shri  K.S. Salathia,  Deputy Secretary to Government of Jammu  & Kashmir,  Home Department,  who  has  filed  the counter affidavit  has with  reference to the averments made in para  3 of  the  petition  made  a  very  very  ambiguous statement that  for the purpose of J and K Public Safety Act the petitioner  was arrested  on July  11, 1981, pursuant to the detention  order. It  is no  where  suggested  that  the detaining authority  was aware  of the  fact that the detenu was already  in jail  and that  keeping in view the fact the detenu was  already locked  up in jail yet it was considered necessary  for  preventing  him  from  acting  in  a  manner prejudicial to  the  security  of  the  State  to  pass  the detention order.  lt may further be pointed out that Shri A. Sahasranaman, the  District Magistrate of Jammu who has made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

the impugned detention order, filed an affidavit on February 7, 1982.  Of course,  in fairness  to him  it must be stated that this  affidavit was for the limited purpose of pointing out as  to how  he dealt  with the case of Hans Raj, another detenu whose  detention was quashed by this Court subsequent to the  order of  this Court.  It may  be noticed in passing that Hans  Raj and  the detenu  were involved jointly in the activity, which  led to  the detention  of the  detenu. Even though this  affidavit was filed for the limited purpose, it came on  record after  the case  was taken up for hearing by this Court  and the  affidavit at  least does  not throw any light on  the vexed question whether the detaining authority was aware  of the fact that the detenu on being suspected of having committed  a serious offence, was already in jail for a period  of more  than a  fortnight before  the date of the impugned detention  order. Preventive  detention is resorted to, to  thwart future  action. If  the detenu  is already in jail charged with a serious offence, he is thereby prevented from acting  in a  manner prejudicial to the security of the State. May  be, in a given case there yet may be the need to order preventive  detention of a person already in jail. But in such  a situation  the detaining  authority must disclose awareness of the fact that the person against whom an or-der of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive  detention order  needs to  be made.  There  is nothing to indicate the awareness of the detaining authority that detenu  was already  in jail and yet the impugned order is required  to be  made.  This,  in  our  opinion,  clearly exhibits  non-application   of  mind  and  would  result  in invalidation of  the order.  We, however,  do not  base  our order on this ground. 529      The second  contention which in our opinion goes to the root A  of the  matter is that there has been a violation of section 13 of the Act. Section 13 provides as under:           "13. Grounds of order of detention to be disclosed      to persons  affected by the order:-(I) 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 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."      x               x                 x      The provision  contained in  section 13  (1) is  on par with the  constitutional protection  conferred by Article 22 (5) of the Constitution of India. The contention is that the obligation on  the detaining  authority  to  afford  to  the detenu the  earliest opportunity  of  making  representation against the  order of  detention, in  order not to render it illusory simultaneously  obliges the  authority to  whom the representation is  made to  consider the same expeditiously. Submission is that a statutory right conferred on the detenu enabling him  to make  a representation  which of  necessity must be giving an opportunity to point out to the Government as to  why the detention order was not justified and that it must be  revoked and the personal liberty deprived under the detention  order  must  be  restored,  is  to  convince  the Government  to   take  into   consideration  the  facts  and contentions set  out in the representation, which must imply that the  Government must  consider the  same. The  earliest opportunity to be afforded for making representation inheres the corresponding  duty of  the Government  to consider  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

representation so  received expeditiously. The reason behind enacting this  provision is  manifest. When  power to detain without trial  is exercised,  the authority  exercising  the power must  afford an  opportunity to the detenu to convince the Government/detaining  authority that  the power  was not justifiably exercised  or no  occasion arose for exercise of the power.  In a punitive detention which is the end product of a  trial in  which the  convict participates and has full opportunity to present his side of the case while preventive detention ordinarily  described  as  jurisdiction  based  on suspicion does  not afford  any opportunity to the detenu to explain his side of the matter before 530 he is  deprived of the liberty and; therefore, so soon after the detenu  is deprived  of his personal liberty the statute makes it  obligatory on  the authorities concerned to afford him an  earliest opportunity  to represent  his side  of the case and  which inheres  the corresponding obligation on the authority to  consider the  same. The  word ’earliest’ which qualifies  the   opportunity  must   equally   qualify   the corresponding obligation  of the  State  to  deal  with  the representation  if   and  when  made,  as  expeditiously  as possible. The opportunity contemplated by the section is the opportunity to  make a  representation against the detention order to  the Government  and therefore  ex  hypothese  soon after the person is deprived of his personal liberty he must be   afforded   the   earliest   opportunity   to   make   a representation. The  representation is  to be  made tc.  the Government. Therefore the detenu who has already been served with the  detention order  and thus  deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities. The jail authority is merely a communicating channel  because  the  representation  has  to reach the  Government which enjoys the power of revoking the detention  order.   The  intermediary  authorities  who  are communicating authorities  have also  to move with an amount of promptitude  so that the statutory guarantee of affording earliest opportunity  of making  the representation  and the same reaching  the Government is translated into action. The corresponding  obligation  of  the  State  to  consider  the representation cannot be whittled down by merely saying that much time  was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the  detention order  and also  simultaneously makes  a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the  Government  and  not  the  detaining  authority,  of necessity  the   State  Government  must  gear  up  its  own machinery to  see that  in these  cases  the  representation reaches the  Government as  quickly as  possible and  it  is considered by  the authorities  with equal  promptitude. Any slackness in  this behalf  not properly  explained would  be denial of  the protection conferred by the statute and would result in invalidation of the order.      Reverting to  the facts of this case, the detenu who in jail from  June 25,  1981, was served with a detention order on July  11, 1981, the very day on which the detention order was made.  The grounds  of detention were served upon him on July  15,   1981.  Admittedly   the  detenu   submitted  his representation to  the Superintendent  of Jail  on July  29, 1981. One K.D. Sharma, Medical officer, Central Jail, 531 Jammu, Incharge  Central  Jail,  Jammu  who  has  filed  his affidavit dated  February 6,  1982, has  admitted  that  the detenu  submitted   his  representation   addressed  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

Secretary to  the Government,  Home Department,  on July 29, 1981. He  proceeds to assert that the said representation in original was forwarded by post to the Government in Srinagar vide his  office No.  2595 dated  July 29,  1981. He further adds that  a wireless  message No. 2596 dated July 29, 1981, was also  sent  to  the  Government  to  intimate  that  the representation of  the detenu  had  been  forwarded  to  the Government for appropriate action. Postal communication from Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication. Nothing to that effect was brought to our notice. Now, Shri Salathia has  stated   in  his   counter   affidavit   that   as   no representation was  received a  wireless message was sent on August  6,   1981,  making   reference   to   the   wireless communication from  the  Superintendent  of  Jail  that  the representation referred  to in  the wireless  message of the Jail Superintendent has still not been received at Srinagar. He requested  the Superintendent to send a duplicate copy of the same  by air  consignment, and  gave a further direction that in  future  all  such  communications  should  be  sent through air consignment. Be that as it may, he says that the representation was  received in  the office  on  August  12, 1981. The  comments from  S.P., C.I.D., Counter Intelligence were called  for on  August 14,  1981. He does not state the date on  which they  were received but he says that the case was examined  and processed on August 24, 1981 in the office and the  file was placed before the Home Secretary on August 25, 1981,  who recommended  the same  for approval on August 28,  1981,  and  the  Chief  Minister  (Home)  rejected  the representation on August 31, 1981, and the fact of rejection of the  representation was  communicated to  the  detenu  on September 1,  1981. There  are two  time lags  which may  be noticed.   Representation    admittedly   handed    in   the Superintendent of  Jail on July 29, 1981 to at Jammu reached Srinagar, the  summer capital  of the  State on  August  12, 1981, which shows a time lag of 14 days. The second lime lag is, from  our point  of view,  more glaring. Even though the concerned office  was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that  a representation  of the detenu has been sent by post, the  . first  query about  its non-receipt came as per the wireless  message dated  August 6,  1981.  That  can  be overlooked, but  it has one important message. The concerned office was aware of the fact that a representation has 532 already been  made and  a duplicate  was sent  for. With the background of  this knowledge  trace  the  movement  of  the representation from  the date  of its admitted receipt being August 12,  1981. If  the  representation  was  received  on August 12,  1981, and  the same  office disposed  it  of  on August 31,  1981, there  has been  a time lag of 19 days and the explanation  in that  behalf in  the affidavit  of  Shri Salathia is  far from  convincing. In  our opinion,  in  the facts of  this case this delay, apart from being inordinate, is not explained on any convincing grounds.      In Khudi Ram Das v. State of West Bengal,(l) this Court held that  one of  the basic  requirements of  clause (5) of Article 22  is  that  the  authority  making  the  order  of detention must afford the detenu the earliest opportunity of making a  representation against  the order of detention and this requirement  would become  illusory unless  there is  a corresponding  obligation  on  the  detaining  authority  to consider the  representation  of  the  detenu  as  early  as possible. Thus,  in the  facts  of  this  case  we  are  not satisfied that the representation was dealt with as early as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

possible or  as expeditiously  as possible,  and, therefore, there would  be contravention of section 13 of the Act which would result in the invalidation of the order.      These are  the reasons  which had  prompted us to quash and set aside the detention order. P.B.R.                                     Petition allowed. 533