J.N. Bhat, J.
1. I have heard the learned Counsel for the parties at length. Mr. Beg's, the learned Counsel appearing for the 19 petitioners' argument is manifold and each aspect of his argument will be considered separately. Mr. Raina's objection was that Mr. Beg should not be permitted to argue all the points that he has raised because these points were not specifically raised in the petitions. There is much weight in what Mr. Raina says; but it has to be kept in view that the petitions were sent by the detenus from Jail where they had no legal assistance available to them. Moreover as the petitions have been argued on pure points of law and on the interpretation of the different provisions of the Jammu and Kashmir Preventive Detention Act, 1964 (hereinafter referred to as 'the Act') I think I should not deny the detenus the privilege of considering all the arguments raised by their learned Counsel. Therefore, I heard Mr. Beg, the learned Counsel for the petitioners, at length.
2. Another preliminary objection raised by Mr. Raina, was that under the Constitution of India Article 35-C an exception has been made in the case of State of Jammu and Kashmir. This Article 35.C reads as under:
No law with respect to preventive detention made by Legislature of the State of Jammu and Kashmir whether before or after the commencement of the Constitution (Application to Jammu & Kashmir) Order, 1954,. Shall be void on the ground that it is inconsistent with any of the provisions of this part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.
This period of 5 years has extended from time to time and the Act is in force now up to 1974. But this point does not arise in this case because Mr. Beg has not challenged the vires of the Act in his argument before me but he has assumed the Act as constitutional and has attacked the orders of detention under the very provisions of the Act itself.
3. Mr. Beg started his argument with the observation that under Section 3 of the Act, there are different circumstancs under which a person can be detained. This section is divided into two main sections (a) and (b). Under (a) (i) the grounds of detention can be security of the Slate or the maintenance of public order and under (b) (ii) the maintenance of supplies and services essential to the community. It is common ground that neither (a) (ii) nor Sub-section (b) of Section 8 applies to the facts of these Oasis. Mr. Beg's argument is that the grounds of security of State and the maintenance of public order cannot be clubbed together in the case of a single individual. The scope of the application of these two provisions namely (i) security of the State and (ii) the maintenance of public order is entirely different and any single individual cannot be detained for both these grounds simultaneously. He emphasised the point that when detention is ordered on the gronnd of security of the State, no grounds need be given if the detaining authority so thinks fit. In the case of maintenance of public order the grounds for detention have to be supplied. Therefore, according to him the detention order of those persons in whose cases both grounds have been simultaneously given are liable to be set aside on this ground alone.
The argument is no doubt original, but in my opinion has not much force behind it. I agree with thelearned Counsel that these two grounds namely the detention for the purpose of security of the state and for maintenance of public order are different in their meaning and connotation. The word 'or' baa not to be read as ''and'. He has argued that when the words of a statute are clear, no artificial or strained construction should be permitted. The word ''or' should not be interpreted as 'and.' It is no doubt true that the cardinal rule of interpretation of statutes is that when the language of the statute is clear no attempt should be made to take recourse to external aides, and the law should be applied as it is expressed by the legislature because the legislature is presumed to be rational and there is always a presumption against redundancy. But all this is not necessary in this case because in spite of the argument of the learned Advocate General, I agree that the legislature envisaged two different categories under Section 8 (a) and they have separate scope for application. The security of the State is a graver reason than maintenance of public order or I should say maintenance of public order is a minor charge as compared with the security of the State.
A person may behave in such a manner as to deliver speeches or indulge in other activities inciting people to violence or preaching communalism, which may result in disturbance of public order. In this case if somebody is detained, his detention can be justified on the score of maintenance of public order. If on the other hand the activities of such a man assume such proportions as for instance joining with an enemy or acting in concert with the designs of an enemy, the field of his activities becoming so wide as to endanger the security or the sovereignty of the State, his acts can be deemed as a menace to the security of the State. I have given only a simple illustration but cases can be conceived where disturbance to the public order can be the result of a variety of acts committed by an individual. Similarly there can be many actions on the part of an individual which affect the security of the State, for which his detention may become necessary under the Act. Therefore, I agree with the learned Counsel for the detenus that these two bars for detention are exclusive but they may in certain cases overlap each other because the activities of a particular individual may in addition to causing disturbance to the public peace endanger the security of the State also.
4. I am not impressed with the argument of Mr. Beg that these two grounds, maintenance of public order and security of the State cannot be 'clubbed together' as he has put it in detaining one and the same individual; it must be either one or the other. Cases can be conceived in which the activities of a person fall under the category of breach of peace as well as endanger the security of the State. In such a case a person can be detained for both such reasons. This would be exactly when a person is charged of different offences, he can be tried for different offences during the same trial subject to the limitations regarding joinder of charges. Similarly if it is thought necessary to detain a person both for preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, he can be detained for both these purposes simultaneously.
5. Mr. Beg has made three categories of the petitioners. In category (a) he has placed the following eight petitioners viz.: Gula Mir, Gulab Khan. Chidya Khan, Mutwali Nakia, Saif-u-Din, Ghulam Nabi, Mohammad Yaqoob and Mohammad Maqbool. In category (b) he has included the following eleven persons namely Ghulam Nabi Khan, Ghulam Mohammad Koul, Ghulam Mohd., Noor.u-Din, Ghulam.u-Saqlain, Altaf Ali, Ghulam Jeelani, Hakim Mohammad Yasuf, Ghulam Mohammad Yattoo, Masood Ahmad and Nazir Ahmed and in the last category (c) comprises four persons Mohammad Maqbool, Ghulam Khan, Saif-u.din, and Chidya Khan (these four persons also figure in Category (a)). The arguments that apply to category (a) do to some extent apply to the detenus in categories (b) and (o). The main arguments regarding petitioners of category (a) addressed by Mr. Beg are that the detention orders show that detention of these detenus has been extended from time to time. For instance let us take the case of Gulla Mir. Gulla Mir was first detained under the defence of India Rules. By Government, Order No. ISD-145 of 1968 dated 5-1-1968 be was for the first time detained under the Act while he was in detention. He was asked to make his representation by means of a further order No. ISD.250 of 1968 dated 12-1-1968 and his case was considered by the Board. The Board tendered its advice by means of its D. O. No. PDA-121/68 dated 3-6-1968. This detention order was confirmed by the Government by means of order No. ISD-585 of 1968 dated 26-6-1968.
A further Government Order No. ISD-76 of 1969 dated 28-4-1969 was communicated to this detenu wherein the Government considered it necessary to continue his detention beyond 29-4-1969, the date on which his detention would come to an end and they modified their earlier order dated 5-1-1968 under Sub-section (1) of 8. 14 of the act and ordered his detention upto the expiry of the act or a maximum period of two years from the date of his detention, whichever would be earlier. Mr. Beg argued that the Government had no such power. According to him the word 'modify' indicated or connoted reduction and not extension. For this he drew support from the language of Section 13(2) of the act itself. This sub-section reads as under:
Nothing contained in this section shall affect 'the power of the Government to revoke or modify the detention order at any earlier time.
He argued that when a word had been used in a particular Act, the same meaning should be given to that word throughout that Act and it would not be permissible to interpret or understand the word in different senses in the different sections of the same Act.
The word 'modify' clearly in Sub-section (2) of Section 18 of the act indicated that the modification would be towards reduction of the period and therefore the order of the Government in interpreting the word 'modify' by extending the term of the detention of the detenu was illegal.
This argument in my opinion has no force. The word 'modify' according to the dictionary meaning out of the many meanings assigned to it, means to make a basic or important change in, to change the form or properties of for a definite purpose. Furthermore this word has been the subject of so much comment in different rulings of the Supreme Court pertaining to this very State when the provisions of Article 370 of the Constitution of India were interpreted. It was first considered in P.L. Lakhanpal v. State of Jammu and Kashmir : 1956CriLJ421 and then again in Puranlal Lakhanpal v. President of India : 1SCR688 and lastly in Writ Petn. No. 111 of 1968, Sampat Prakash v. State of Jammu and Kashmir D/- 10-10-1963 (SG) wherein it has been held that:. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its as. plication to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If be could efface a particular provision of the Constitution altogether in its application to the Stats of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word 'modification' in Article 370(1), the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir.
It farther held that:
Thus, in law, the word 'modify' may just mean 'vary' i.e. amend, and when Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify, it means that he may vary (i.e. amend) the provisions' of the Constitution in its application to the State of Jammu and Kashmir. Ws are, therefore, of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word 'modification' used in Article 370(1) and in that sense it includes an amendment. There is no reason to limit the word 'modification' as used in Article 370(1) only to such modification as do not make any ''radical transformation.
Further even under the Constitution as is clear from the above remarks the word 'modify' has to be given the amplest con. notation including radical transformation. The word 'modify' in Sub-section (2) of Section 13 of the act does not at all indicate that it is used in the sense of reduction of the period, modification may be by reducing the term, it may be changing the place of detention or by providing further amenities or curtailing them. There is no technical definition of the word ''modify' in the Act. This argument cannot at all help the petitioners.
6. The second argument of Mr. Beg was based on Section 14 of the Act. He said that the Government could only revoke or modify the order passed under Sub-section (2) of Section 3 of the Act. Sub-section (2) of 8. 3 empowers the following officers to pass the order of detention:
(a) Divisional Commissioners,
(b) District Magistrates.
Therefore according to Mr. Beg, the power of Government would be limited to revoke or modify the orders passed by these two officers only and not passed by the Government itself. In the first place it would look strange that the Government could revoke or modify an order passed by some subordinate officer that would be powerless to do the same when the order was passed by it. The Government is definitely a superior authority to the officers mentioned therein. Apart from this implied fallacy in the argument of Mr. Beg the language of Section 14 is very dear. It says leaving aside the portion dealing with Section 21 of the General clauses Act, that:.a detention order may at any time be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in Sub-section (2) of Section 3.
It gives a wider power to the Government namely notwithstanding that the order has been made by any officer mentioned in Sub-section (2) of Section 3. The plain language suggeats that the Government has power to modify or revoke an order passed by itself as also an order passed by the officers mentioned in Sub-section (2) of Section 3. Notwithstanding clearly means 'even if and not only if.' This is a very clear provision and the argument of Mr. Beg has no force in it.
7. Allied with this part of the argument Mr. Beg argued that the power was vested in the Government and not in the Chief Minister because the Chief Minister did not constitute the Government. In this behalf he referred to the Webster's dictionary meaning of the word 'Government' which is
the body of persons that constitutes the governing authority of a particular unit or organization as (a). . . the officials collectively comprising the Governing body of a...political unit and constituting the organisation as an agency (a world in which Government are highly and effectively resolved to work together F.D. Roosevelt).
The word 'Government' has not been defined in the Constitution of India or in our Constitution. Ours is a parliamentary democracy. The responsibility of the ministers is joint and several. They function collectively as well as individually. Any order of an individual minister concerning his portfolio will be deemed to be an order of the Government. The same principle is laid in the Rules of Business also. The Chief Minister is incharge of the Home portfolio. He represents the Government so far as the affairs of law and order are concerned and his derision on any such matter will be considered to be a decision of the Government. He has applied his mind and then passed the relevant order. Under the Rules of Business further the orders of the Government are to be authenticated by the Secretary concerned of the particular department. In this case the affidavit of the Home Secretary is sufficient on behalf of the Government and he is the proper person to swear an affidavit in this behalf. Reference may be made in this behalf to AIR 1950 E P 162. Therefore even this argument of Mr. Beg fails. As such the petitions of the petitioners of Category (a) fail and are liable to be dismissed but the cases of four petitioners viz; Mohd Maqbool, Ghulam khan, Saif-u-din and Chidya Ehan fall in Category (c) also. The cases of their detention will be considered under that category also, no matter that they are not entitled to be released on the arguments advanced for them as being contained in category (a).
8. The cases of eleven detenus of Category (b) were argued on the following basis namely that these people were detained both with a view to preventing them from acting in any manner prejudicial to the security of the Stateand the maintenance of the public order. Dif. ferent orders in the case of different detenus under this category were passed. Subsequent to these initial orders of detention they were futther informed by different orders to the effect that in pursuance of Section 8 read with, 8. 13A of the Act, the said detenus are informed that it is against the public interest to disclose the facts or to communicate to them the grounds on which their detention orders have been made. Under Section 8 of the Act grounds of detention have to be disclosed to the person who is affected by the order and the maximum time provided for communicating the grounds of detention to such a, person is ten days from the date of detention. He has to be afforded the earliest opportunity of making representation to the Government against the order but there is a proviso added to this section, which reads as under;
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.
Mr. Beg laid much emphasis on the scope of a proviso. He referred to page 45 of Bindra'a Interpretation of Statutes. The function of a proviso has been discussed in a number of authorities and this Court also has had occasion to discuss the scope of a proviso in many cases but the general principle underlying the interpretation of a proviso is to take out a particular class of cases from the general language of the main enactment and its effect is confined to those very cases. See AIR 1944 P C 71, Halsbury Laws of England 2nd Ed., Vol 31, para 605 at page 484, AIR 1950 Bom 45. As was said in Annie Besant v. A. G. of Madras I L R 43 Mad 146 : AIR 1919 P C 3L 'there is no magic in the words of a proviso.' Its only effect is to place a limitation on the principal enactment. See AIR 1933 Oudh 491. Lord Maonaughtefa in Local Government Board v. South Stoneham Union 1909 A 0 57, remarked that 'I think the proviso is a qualification on the enactment which is expressed in terms too general to be quite accurate.' A proviso which is in fact and in substance a proviso, can only operate to deal with a case which but for it would have fallen within the ambit of the section to which the proviso is a proviso.
I do not think that this academic discussion about the scope of the proviso should detain us. All that the proviso to Section 8 of the Act means is that if a person is detained with a view to preventing him from acting in any manner prejudicial to the security of the State the detaining authority may refuse to disclose the grounds of the detention if it would be in his opinion against the public interest to communicate to him the grounds of his detention. So in other words it means that grounds have to be supplied to a person detained in every other case except where he is detained with a view to preventing him from acting in any manner prejudicial to the security of the State. Applying this principle to the concrete facts of the cases of the petitioners contained in category (b), it is understandable that the detaining authority in these cases, the Government, did not think it fit in the public interest to communicate to the detenus the grounds of their detention so far as the security of the State was concerned. This the detaining authoricy had the power to do and in spit of the forceful argument of Mr. Beg I think this is the only simple, plausible and rational interpretation of this proviso. Therefore so far as the detention of these persons with a view to preventing them from acting in any manner prejudicial to the security of the State is concerned, the Government is perfectly at liberty to withhold the grounds from them in the public interest. It is very well settled that the satisfaction has to be of the detaining authority and the court , unless it is proved that the order of detention is liable to be set aside on some other ground, cannot substitute its own opinion, so far as the satisfaction is concerned, for the opinion of the detaining authority. Reference may be made to : AIR1950Mad162 .
9. But the detaining authority was bound to disclose or communicate the grounds of detention to the detenues under the first; part of Section 8 of the Act, so far as maintenance of public order is concerned. That has admittedly not been done in this case or in other words no grounds have been communicated to the detenus for detaining them for causing disturbance to the public order. The learned Counsel for the State, Mr. Raina. relied on Sub-section (2) of Section 8 of the Act which is in the following words:
Nothing in Sub-section (l) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
The learned Advocate General argued that the Government was well within its rights in not disclosing the facts which in these cases meant the grounds for their detention to the detenus as in the opinion of the detaining authority such a disclosure was against the public interest. But I am afraid, this is an argument without any substance. In the first place this sub-section lays down that the detaining authority can refuse to disclose the facts if in the public interest it is necessary to do so. But fasts are entirely different from grounds.
In my opinion this is exactly against the case of a charge. If a charge is framed against an accused person, the basic matter of his having committed an offence is disclosed in the charge. All those facts which have led the Magistrate or the Judge to that conclusion need not be and are not mentioned in the charge. Similarly there may be hundred and one facts or acts committed by an individual which collectively may afford a ground for his detention. The facts may not be and need not be mentioned but the ground has to be. The grounds are the basis of the allegation and the facts are the evidence upon which the allegations are based. In this view I am supported by a Division bench authority of the Calcutta High Court reported as : AIR1951Cal194 . Therefore the detention of these detenus of category (b) is invalid so far as the second reason of their detention namely maintenance of public order is concerned. Authorities need not be cited for the proposition of law that failure to communicate the grounds to the detenu, when he is in law entitled to be told about the grounds, renders the detention illegal. Reference may be made to AIR 1949 All 148 (FB) and AIR 1948 Bom 334 (FB). Even vague grounds have been held to be sufficient to invalidate the detention. See AIR 1951 Simla 157.
10. The learned Advocate General in the first place argued that the reason of maintenance of public order is included in the reason of detention as envisaged in the security of the State. This argument has not at all impreesed me as I have pointed out earlier. Besides the Legislature has used two different and definite expressions which are separated by the word 'or' in Section 3(1)(a) (i) namely preventing a person from acting in any manner prejudicial to the security of the State or the maintenance of public order. Mr. Beg has rightly argued that no superfluity is to be attributed to the Legislature, the Legislature is presumed to have laid down what it intended and each word or expression or provision in an enactment has to be given due weight and its right place.
11. An attempt was made by Mr. Raina to advance an alternative argument and that was if the detention is good without disclosure of grounds so far as the security of the State is concerned, no benefit can accrue to the detenues even if their detention on the ground of the maintenance of public order for want of supply of grounds is bad; because the detenus can be detained on the first cause alone; the second ground can be safely ignored. But I am not impressed with this argument because in the first place the detenus have been denied the right given to them under the law to know the grounds of their detention so far as their detention for maintenance of public order is concerned. The liberty of a citizen has been encroached upon and he is put behind the bars without a fair trial, without an opportunity of allowing him to be defended in a proper trial. Mr. Beg has rightly argued that the liberty of a citizen is one of the fundamental rights enshrined and guaranteed under the Constitution of India. Therefore any attempt on the part of the Executive to in any way curtail or interfere with the liberty of a citizen should be put down with a heavy hand. Secondly if the detenus had been given the grounds of, their detention for the maintenance of public order, they would have made a representation against their detention. They might have shown such, strong reasons as would compel the detaining authority to change their mind so far as their detention is concerned at least under the head of the maintenance of public order. This maintenance of public order has an intimate connection with the security of the State; the learned Advooate General tried to call it a species under the genius security of the State.
Even if that argument is, not accepted in to the detenus may bring to the notice of the detaining authority facts which would make them change their mind about their whole detention. Thirdly the detaining authority may think of releasing the detenus sofar as the detention under the public security is concerned. But at the same time it may be still apprehensive about their activities dis turbing the public order. Therefore the detenus have been deprived of making a representation as no grounds have been communicated to them and therefore it cannot be ruled out that the detention is unnecessary and uncalled for, for they might have satisfied the detaining authority that there was no ground so far as the maintenance of public order was concerned. In these circumstances even if the order of detention preventing them from acting in any manner prejudicial to the security of the State is concerned, is unassailable, the reason for their detention without giving them the ground for such detention is unjustified and illegal so far their detention for reasons of public order was concerned. The latter defect affects the former detention order also which are akin and allied to each other. In my opinion the whole order of detention is illegal and therefore ,the detention order of these eleven persons of category (b) is bad in law and they have to be set at liberty.
12. Now I take category (c) dealing with the cases of four persons namely Mohammad Maqbool, Ghulam Khait Saif-u-din and Chidya, Khan. From the affidavits of the Home Secretary it would appear that they have been detained for preventing them from acting is any manner prejudicial to the security of the State and maintenance of public order. It is the case of the State that their order was passed by the Government, the Chief Minister was satisfied about their activities which resulted in the orders of their detention. The. learned Counsel appearing for the petitioners,. Mr. Beg, presented four original orders served: on these people signed by the Secretary to Government, Home Department. These are cyclostyled copies and in the orders which were handed over to the detenus the important words are:.You are hereby informed that your detention was ordered on grounds specified in the Annexure appended hereto, which also contained facts relevant thereto, except those' which I consider to be against the public interest to disclose...
In the file preserved by the Government instead of the word 'I' the word 'Government' has been substituted. Mr. Beg made a very long and forceful argument on this account. He argued that the original orders are those which are produced by him, which were properly signed by the Home Secretary and were given to the detenus concerned. The Home Secretary was not one of the authorities mentioned in the act who could pass such an order nor did he figure any where in the scheme of the act in his individual capacity. The authorities who were competent to pass an order of detention were either the Government, the Divisional Commissioner or the District Magistrate. According to him there had been tampering with the records by the Government may be after these petitions were filed. Records have been tempered with, argued Mr. Beg, forgeries committed and to crown all this, false affidavits have been sworn by no less an official than the Home Secretary himself.
Such a state of affairs discloses rather a serious situation portraying absolute chaos and playing with the liberty of the subject and throwing to wind all rules and canons of decency. He suggested that proper proceedings should be initiated against the concerned officers for forgery, tamparing with the records and perjury. The learned Advocate General replied that the orders were actually passed by the Government, it is only through some clerical mistake that the word 'I' instead of the ''Government' appears in the orders served upon the detenus. The whole mistake was a bona fide one, the Home Secretary had sworn an affidavit that it was the Chief Minister, incharge of the Home portfolio, who was satisfied and it was on his satisfaction that these people had been detained. Without making that much of the comment as the state of affairs deserves, the legal position that emerges is whatever be the intention of the Government or whatever may have happened behind the back of these detenues they are served with an order which is not in accordance with law. They have been explicitly told that the Home secretary considers it against public interest to disclose the grounds of their detention. The Home Secretary as such as remarked earlier, has no locus standi in himself to pass or consider any order of detention. The orders served on these four detenus are clearly therefore, illegal and they cannot be any longer detained on the ground of such orders. These four petitioners also deceive to be set free.
13. The cases of the remaining three detenus Kaka Ram, Mohd. Akbar and Mohd. Yaqub do not disclose any defeat on which their orders of detention can be quashed. Their petitions are therefore dismissed.
14. The result is that the petitions of Moh. ammad Maqbool, Gulab Khan, Saif.u-Din, Chidya Khan (category (c) and Ghulam Nabi Khan, Ghulam Mohammad Koul, Ghulam Mohammed, Noor-u-din, Ghulam-n-Saqlain, Altaf Ali, Ghulam Jeelani, Hakim Mohammad Ynsuf, Ghulam Mohammad Yahoo, Masood Ahmad and Nazir Ahmed (of category (b)) are accepted and they shall be set at liberty immediately. The petitions of the rest of the petitioners namely Gula Mir, Mutwali Nakia, Mohammad Yaqoob, Ghulam Nabi, Kaka Ram. Mohd. Akbar and Mohd, Yaqub stand dismissed. The petitions of Khaliq Guru and Jahan-gir Khan have become infructuous as it is stated that these two petitioners have been since released, according to the affidavit of the. Home Secretary.