Skip to content


Ghulam Mustafa Kamil and ors. Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1971CriLJ48
AppellantGhulam Mustafa Kamil and ors.
RespondentState of Jammu and Kashmir and anr.
Cases ReferredGhulam Nabi Hagroo v. State
Excerpt:
- anant singh, j.1. these 15 petitions have been filed under section 491 of the criminal procedure code in the nature of habeas corpus. as the points involved in them are mostly common, they have been heard together and this judgment will govern all of them.2. the petitioner in each case has been detained in one or another iail of the state either by the order of the district magistrate srinagar, or the district magistrate baramulla under section 3 (2) read with section 5 of the jammu and kashmir preventive detention act, 1964 (act no. xiii of 1964) or by the government under section 3 (1) (a) (i) read with section 5 of the same act, referred to hereafter as the act. the orders of detention were made on different dates by the district magistrate baramulla in case nos. 65, 66, 82 and 83 of.....
Judgment:

Anant Singh, J.

1. These 15 petitions have been filed Under Section 491 of the Criminal Procedure Code in the nature of Habeas Corpus. As the points involved in them are mostly common, they have been heard together and this judgment will govern all of them.

2. The petitioner in each case has been detained in one or another iail of the State either by the order of the District Magistrate Srinagar, or the District Magistrate Baramulla Under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 (Act No. XIII of 1964) or by the Government Under Section 3 (1) (a) (i) read with Section 5 of the same Act, referred to hereafter as the Act. The orders of detention were made on different dates by the District Magistrate Baramulla in case Nos. 65, 66, 82 and 83 of 1969, by the Government, case No. 85 of 1970 and by the District Magistrate, Srinagar in the rest. The order of detention in each case was followed by another separate order of even date by the authorities concerned withholding the disclosure of the grounds of detention 'in the public interest' in view of the Provisions of Section 8 read with Section 13 (A) of the Act. They were arrested on different dates between November, 1968 and November, 1969, and they are lodged in different jails as specified in the order of detention or subsequently transferred by the Government to some other jail.

3. All the orders are practically similarly worded, except for the difference in the names of the detenus and the authority making the order. A copy of each order supports to have been forwarded to the relevant police officer for service on the detenu concerned, as also to the Government and its various authorities. A compliance report by the police officer concerned is also endorsed at the foot of each order. I may quote only one of such orders from its true copy as made in case No. 43 of 1969 by way of sample.

Order No. PDA-DM/230/69 dated 17-3-1969.

Whereas, I, Iftikhar Ahmad, IAS., District Magistrate, Srinagar, am satisfied that with a view to preventing Ghulam Mustaffa Kamil S/O Syed Akbar Shah, R/O Kawdara, Srinagar, from acting in any manner prejudicial to the security of the State, it is necessary so to do;

Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, Iftikhar Ahmad I. A. S., District Magistrate, Srinagar. hereby direct that the said Ghulam Mustaffa Kamil be detained in Addl. lock up attached to Police Station Saddar, Srinagar subject to such conditions as to maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenus (General) Order, 1968.

Sd/- (Iftikhar Ahmad) I.A.S.

District Magistrate,

Srinagar.

Forwarded to Shri A. R. Mir, Dv. Superintendent of Police CID/CI, Srinagar for execution of the order as provided by Section 4 of the Jammu and Kashmir Preventive Detention Act; 1964. Notice of the order shall be given to Ghulam Mustaffa Kamil by reading over the same to him...

Copy forwarded to the:-

1. The Secretary to Government, Home Department, Jammu.

2. The Divisional Commissioner, Kashmir, Srinagar.

3. The D. I. G., C. I. D., J. & K. Jammu.

4. The Superintendent Central Jail, Srinagar.

5. The Superintendent of Police, Srinagar.

6. The Superintendent of C. I. D., Srinagar for information.

S. Charan Singh Inspector of Police, M. R. Gunj Srinagar.

Please execute under rules and report compliance.

Sd/- (A. R. Mir)

Dy. S. P.C.ID/CI,

Srinagar, D/- 17-3-69.

In compliance with the order overleaf, I arrested Ghulam Mustaffa Kamil S/O Syed Akbar Shah R/O Kawdara Srinagar today the 17-3-1969 at Srinagar and committed him to the Additional Lock up attached to the P./S. Saddar Srinagar. Notice of this order was given to the said Ghulam Mustaffa Kamil by reading over the same to him.

Sd/- (S. Charan Singh)

Inspector of Police

M. R. Gunj, D/- 17-3-69.

Submitted duly executed.

Sd/- (A. R. Mir)

Dy. S. P.C. I.D. Srinagar

D/- 19-3-69.

4. The subsequent order of the even date withholding disclosure of the grounds is as follows:-

Office of the District Magistrate Srinagar

Order No. ST/252/69

dated 17-3-69.

Whereas Ghulam Mustaffa Kamil S/O Syed Akbar Shah R/O Kawdara Srinagar has been detained in pursuance of order No. PDA/DM/230/69 dated 17-3-69 made by me Under Section 3 (2) read with Section 5 of the J. & K. PDA, 1961 with a view to preventing him from acting in any manner prejudicial to the security of the State; and

Whereas, I consider it against the public interest to disclose the grounds of detention to the said Ghulam Mustaffa Kamil.

New, therefore, in pursuance of Section 8 read with Section 13 A of the said Act I hereby direct that the said Ghulam Mustaffa Kamil be informed that it is against the public interest to disclose to him the grounds on which his detention order was made.

Sd/- District Magistrate,

Srinagar.

Forwarded to the Superintendent, Central Jail, Srinagar, for information of the concerned.'

5. In order to appreciate the grounds taken by the petitioners in challenging the legality of their detention, I had better quote the relevant provisions of the law.

6. Section 3 appears under the heading 'Power to make orders detaining certain person,' and it is to the following effect:

(1) The Government may-

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-

(i) the security of the State or the maintenance of public order, or

(ii) the maintenance of supplies and services essential to the community, or

(b)....

it is necessary so to do, make an order directing that such persons be detained.

(2) Any of the following officers, namely:-

(a) Divisional Commissioners,

(b) District Magistrates, may, if satisfied as provided in Sub-clauses (i) and (ii) of Clause (a) of Sub-section (1), exercise the powers conferred by the said Sub-section.

(3) When any order is made, under this Section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government

(4) Execution of detention orders.- A detention order may be executed at any place in the State in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, Samvat 1989.

6-A. Section 5 appears under the heading 'power to Regulate place and conditions of detention......' and it is as follows:-

Every person in respect of whom a detention order has been made shall be liable.

(a) to be detained in such place and under such conditions including conditions as to maintenance, discipline and punishment for breaches of discipline as the Government may by general or special order, specify; and

(b) to be removed from one place of detention to another place of detention, in the State by order of the Government.

6-B. Section 8 (1) provides for communication to the detenu within a certain period, the grounds of his detention, but Sub-section (2) empowers the authority not to disclose such facts which 'it considers to be against the public interest.

7. Section 13-A as added by the Amendment Act No. VIII of 1967 has authorised the authority making an order of detention for the security of the State, to inform the detenu that 'it would be against public interest to communicate to him the grounds on which the detention order has been made.'

8. It was under notification No. IS-61-D/58 published in Government Gazette dated 2G-8-58 Ext. Pt 1-B; 51 (9) P 2 that the Government in exercise of its power under Clause (a) of Section 5 of the Jammu and Kashmir Preventive Detention Act (Act No. 4 of 2011) which was exactly similar to the existing provision, had declared certain .trails as the places for the detention of detenus ordered to be detained under the said Act.

9. The said Act No. 4 of 2011 was, however, repealed by Section 17 of an Ordinance No. 1 of 1964, which came into force from 8th of May, 1964, and the said Ordinance also has been repealed by Section 17 of the present Act No. XIII of 1964. The Repealing Ordinance and the Act each, however, added a saving clause retaining as valid anything done or action taken under the old Act or the Ordinance as the case may be. The jails specified by the Government as the places for the detention of the detenus in the above notification, therefore, have continued to be the places within the meaning of Section 5 fa) of the present Act as well.

10. In the Jammu and Kashmir Detenus (General) Order, 1968 published under Government Notification dated Jammu the 9th' January 1968, (detenu) has been defined as 'any person ordered to be detained and committed to a place of detention in the State by any authority acting in exercise of the powers conferred by Section 3 of the Jammu and Kashmir Preventive Detention Act, 1964' and 'the place of detention' has been denned as 'a ,jail or other place in the State in which a detenu is ordered to be detained'.

11. The detenus in the present cases have been ordered by the detaining authority to be detained in one of the same jails as specified by the Government in the notification of 1968. They have since been transferred by orders of the Government to other jails in most of the cases excepting case Nos. 66, 68 and 83.

12. learned Counsel Mr. M. A. Beg, appearing for the petitioners has challenged the validity of the orders of detention mainly on the grounds of their vagueness, and their non-service on the detenus.

13. Firstly, he has contended that the orders only mention that the detention was for 'the security of the State' without giving any indication how and why the security of the State was endangered at the hands of any of the petitioners. The orders do not show what was actually threatened, whether it was the maintenance of public order or the maintenance of supply and services essential to the community or both. But the latter two conditions are quite distinct and separate from the first. All are independent. The endangering of any one of them will, in my opinion, attract the provision. It was a question of subjective satisfaction of the authority making the order of detention. The detention could be ordered for either one or more of the conditions mentioned Under Section 3 (1) (a) as also (b). The 'security of the State' alone was a good ground for the detention orders in each case when the detaining authority was satisfied about its being endangered. It was within its competence to have made the order without disclosing the nature of the danger at the hands of the detenu. There appears to be no substance in this condition of Mr. Beg.

14. The second ground of attack of Mr. Beg is that the order of detention within the meaning of Section 3 and a mention of the place of detention within the meaning of Section 5 of the Act have both been clubbed together in the same composite order and, therefore, it is rendered vague, making it bad in law. It has also been canvassed by Mr. Beg that a District Magistrate has no authority Under Section 5 (a) of the Act to define the place of detention, but the only proper authority for this purpose is the Government, which cannot delegate its powers to any other officer.

15. The first part of the order in each case mentions the grounds for making it, and the second part mentions the place of detention in a particular jail, as has been specified by the Government by its general order, as in the aforesaid notification of 1968 which is still alive. The second part is quite distinct and separable from the first part. I do not quite agree with Mr. Beg to treat any of the orders as vague, because, the two operative parts of the same order have been combined into one whole.

16. It is true that in the first part of the order wherein the necessity for making it is stated, the provision of Section 3 is not quoted immediately thereafter. It is quoted in the subsequent part in which the place of detention is mentioned, and the provisions of the two Sections 3 and 5 have been mentioned at one place as 'by Section 3 (2) read with Section 5' of the Act conferring the necessary powers on the District Magistrates, except in case No. 85, in which, a reference of 'Sec. 3 (1) (a) (i) read with Section 5' is given again at one place in the second part of the order. In this case the order was made by the Government. But by such clubbing together of the two parts of the order made under two separate provisions of law, the orders are, by no means, rendered vague and indefinite. The two parts of the orders are quite separable, and distinct ones. The first part relating to detention is easily referable to Section 3, Sub-clause (2) which authorises the District Magistrate to make the order, and the second part regarding the place of detention is easily referable to Section 5 of the Act.

17. Mr. Beg would, however, contend that the detaining authority should have recorded two separate orders, first Under Section 3 and then Under Section 5 or the least, it could do, was to have quoted the relevant provision after writing out the first part and stopped and it should have then written out the second part, with the relevant provision.

18. I do not quite agree with the learned Counsel for the petitioners that the first part of the order should have necessarily quoted the relevant Section 3, and then stopped and that, the second part should have been commenced thereafter, giving reference of Section 5, though, such an arrangement had been better, if it was so done by the officer making the order. It would have still been better, if two separate orders under each of the provisions were passed. It is another matter, if the District Magistrate had the authority to name the place of detention. I shall revert to this question hereafter. Assuming, however, at this, stage that the District Magistrate had such authority, there is no legal bar to the making of any composite order by him provided, it is a speaking one and the facts are referable to the particular provisions of law, as all these orders, in my opinion, are. Even a wrong quotation of any relevant provision of law cannot make any order invalid so long as the facts are clearly stated so as to be referable to any particular law. and that the officer making the order has the requisite power.

19. A decision of my Lord the Chief Justice given on 2-8-1968 in an application Under Section 491, Criminal P.C. (No. 1 of 1968 (J. & K.)) in case of Ghulam Nabi Hagru y. State has been cited before us to say that a composite order in which the order of detention and the place of detention are clubbed together is bad in law because of vagueness. In that case the order had been made by the Government for 'the security of State and maintenance of public order,' and the provisions of law were quoted in the second part of the order. Since the detention can be made on either of the grounds stated in Section 3 of the Act and in the aforesaid order of the Government the detention was ordered for both the grounds by combining them with 'and'. Hon'ble Chief Justice observed: 'the word 'and' is however not mentioned in any of the provisions of Section 3 (1) of the Act'. After quoting the relevant provisions, he further observed: 'Sub-clause (i) of Section 3 (1) makes a clear cut distinction between the security of the State and maintenance of public order by using the word 'or'. The fact that the word 'and' is used in the detention order clearly shows that the Government has not applied its mind to the facts of the case and has passed the order of detention as a matter of routine.'

20. The facts of the above case are clearly distinguishable from the facts of the present cases, for in all of them, detention has been made only for 'the security of the State.'

21. A Division Bench of this Court in Karim Bux v. State of Jammu and Kashmir reported in A.I.R. 1969 J & K 77, in which the judgment was delivered by my learned brother Jaswant Singh J. it has been held exactly on similar facts on the question of clubbing, quoting from the plasitum, as follows:-

Where the composite order of detention is clearly severable and can be split up in two parts, the first part containing direction as to detention can be taken to have been passed Under Section 3 and the second part specifying the place of detention can be taken to have been passed Under Section 5 of the Act. A composite order of this sort is not invalid.

In fact the failure to specify the place of detention would create difficulties and make the order of detention ineffective.

22. The above case relied on the decision of a Division Bench of the Bombay High Court in Pralhad Krishna Kurane v. State of Bombay reported in : AIR1952Bom1 .

23. In the Bombay case the relevant provisions of their Preventive Detention Act were similar to our Act. They also had a provision under their Section 3 for making an order of detention and another Section 4 for specifying the place of detention either by a general or special order by the Central or the State Government as the case may be.

24. One of the points raised in the Bombay case was whether the order of detention would be bad, if the place of detention is not mentioned or it is wrongly mentioned without an authority in the person making the order of detention in a particular jail. It was held that the detention orders were not bad on any of these grounds. I may quote the relevant extract from the judgment of the Bombay High Court on page 14.

Of course both the directions, viz. the direction as to detention and the direction as to the place of detention, may, in some cases be contained in the same order, i. e., the same order may direct; (1) that a person shall be detained, and (2) that the detention shall be in a particular place. In so far as it directs that a person shall be detained, it will be an order Under Section 3 and in so far as it says that the detention shall be in a particular place it will be an order Under Section 4. In other words, it will be an order separable in two distinct parts, one of which will fall Under Section 3 of the Act and the other Under Section 4.

It was further held in the same case.

The detaining authority can direct the detention of a person in its own jurisdiction where the local Government has, by a general order, specified that the detenu can be detained in a jail which is within the jurisdiction of the detaining authority. Just as when a person is convicted, no order is required from any body and the Court which convicts an accused person can send him to the prison within its jurisdiction for undergoing the sentence, similarly the detaining authority is empowered' to send a detenu to a jail where by a general order the State Government has directed the detenus were liable to be detained.

25. There can be no manner of doubt that in the nature of things as also under the scheme of the Act, the detaining authority has at first to make the order of detention of any person and it is then alone that such a person 'shall be liable to be detained in such place' 'as the Government may by general or special orders specify'. Such places having been already specified by the Government by its general orders as has been stated earlier, the detaining authorities being the District Magistrates in 14 cases by ordering confinement of these detenus in one of such places, committed no irregularity much less violated in any law. In case No. 85, the confinement to a particular jail was by the order of the Government itself. The position may have been different in the other cases, if the Government had not specified the places of detention. The two District Magistrates after passing the detention orders on the detenus had to indicate, where such detenus would be lodged. If they had not so indicated, even then they had to be lodged by an executive order in one of the approved jails of the Government situate within their territorial jurisdiction, just as it is done in the case of prisoners convicted by the criminal courts. It was so held in the Bombay case as well.

26. So long as the detention orders are not bad in law the subsequent 2nd parts of the orders defining the place of detention to one of the approved jails of the Government follow from the orders of detention themselves so long as they conform to the provision of Section 5 of the Act. There is no question of any delegation of its authority by the' Government to the detaining authority, other than the Government, to define in its detention order the place of detention of a detenu. The Government having specified such places, the detaining authority has only to commit the detenus to one of such places.

27. 'Detenu' and 'place of detention' for the purpose of Sections 3 and 5 of the Act have also been defined by the Government in its General Order of 1968, already referred to, which may, however, be somewhat wide of the mark in including, apart from the jails specified by the Government even 'other place' in which a detenu is ordered to be detained by the detaining authority, for such an authority, other than the Government, cannot validly order detention in any 'other place' than the approved jails. But the other parts of this general order are not violative of the provision of Section 5 of the Act. The impugned orders even with regard to the place of detention do not seem to be suffering from any infirmity.

28. If however, anything can be said against the orders relating to the naming of the place of detention, either because of its clubbing with the detention order or because of want of jurisdiction in the detaining authority other than the Government, this part of the orders can well be ignored as superfluous or redundant. The detention orders being valid, the detenus could still be lodged in some of the approved jails even by executive orders, as I have observed earlier, Section 5 of the Act is only procedural which, however, has to be followed in terms as it has been done in all the cases. Be as it may, this is now only an academic question.

29. It may be mentioned that in case No. 85 the order was made by the Government itself specifying the place of detention. In the remaining cases with the exception of case Nos. 66, 68 and 83, the detenus have since been transferred to other jails by orders of the Government from their original jails in which they were lodged initially by the order of the detaining authority. These detenus were transferred between November C8 and December 69, as Mr. Karim, appearing on behalf of the State, has furnished us a list of such transfers. Thus the detention of these detenus in particular jails are now by the orders of the Government. It may further be mentioned that as provided Under Section 3 (2) of the Act, the detaining authority is required to send a report to the Government after making the order of detention. It must be presumed that this must have been done as an official act, when there is no averment to the contrary. Thus the Government must be presumed to have been made aware by the detaining authorities of the places of detention of all the detenus, and therefore, it must also be presumed that the places of detention had received the approval of the Government. In these circumstances, the orders of detention cannot be said to be bad in any of these cases including case Nos. 66, 68 and 83. The objections raised by Mr. Beg to the validity of the detention are overruled.

30. Mr. Beg, has next challenged the validity of the detention orders vet on other grounds of non service of the detention orders as also the orders withholding the grounds of detention. It is urged that there is no affidavit .sworn by the police officers concerned who are said to have served on the detenus the relevant orders, and arrested them. The District Magistrates or other officers swearing the affidavits on behalf of the respondent, admittedly, did not personally serve any of the orders on any of the detenus. The affidavits sworn by them in this connection are said to be inadmissible in evidence, being hearsay and therefore, insufficient to prove the service of orders on the detenus and their arrests, by execution of proper warrants. This contention of Mr. Beg appears to be quite tenable, provided such objections have been taken in the various applications filed by or on behalf of the detenus.

31. In 12 of the cases, excepting case Nos. 48, 49 and 83, there are such objections taken, more or less in the same language. In all these 12 cases there is a common ground that during the whole period of detention of these detenus up-to-date, none was served orally or otherwise with any detention order or grounds of detention nor was he given any opportunity to make any representation to the Government against their detention order. In case No- 85 it is further stated that not even the Superintendent of the Central Jail where the detenu was lodged could furnish him any attested copy of the detention order. The further allegation in 10 out of these 12 cases, excepting case Nos. 64 and 66, are that these detenus were arrested on one date or the other, without any warrant of arrest, In case No. 64 .it is only stated that the detenu was arrested on 17-2-68 by a C. I. D. personnel and in case No. 66, it is stated that the detenu was arrested on 21-7-68 forcibly by an Army Officer.

32. These allegations of arrests ; without warrant in 10 cases and the non service of orders of detention on the detenus in all these 12 cases are supported by affidavits and they have not been disproved by swearing of affidavits by competent persons. As I have already indicated, the affidavits sworn on behalf of the State in this regard are based on hearsay reports.

33. It may be mentioned that on each of the detention orders and the subsequent orders withholding the grounds of detention, there are endorsement of compliance of execution of the orders, purporting to have been made by the serving police officers, but such police officers have not sworn any affidavits to prove them. These compliance reports, as they are described, therefore, cannot be taken into consideration to prove the service of the relevant orders.

34. Tn these circumstances, it must be held that in the above 12 cases, the detenus were not served with their respective order of detention and the order refusing to disclose the grounds of their detention, although, it was within the competence of the detaining authority to refuse to disclose the grounds of detention. It must also be held that the State respondent has not been able to prove the arrests of these 12 detenus with any proper warrant of arrest.

35. The question is whether for the above stated reasons, the detention of these 12 detenus can be characterized as illegal. The answer in my opinion must be in the affirmative.

36. It is recognized principle of law that Preventive Detention Act is a serious encroachment on the civil liberties of a citizen, and, therefore, any law which curtails in any manner such liberties, has to be very strictly construed.

37. Section 4 of the Act provides for the execution of a detention order in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure.

38. The relevant provisions of the Criminal Procedure Code in this regard are contained in Sections 46. 78, 79 and 80 of it. They provide for the execution of a warrant of arrest by a police officer by the order of any competent Magistrate. The provisions of Sections 78 and 79 are, however not relevant for our purpose. Section 46 prescribes the manner how a person has to be arrested by touching his bodv or confining his body, in case, he does not submit or resist his arrest. Section 80 is to the following effect:-

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and if so required, shall show him the warrant.

39. Apart from the provision of Section 80, Criminal P.C. there was a direction by the detaining authority in each case to the police officer charged with the execution of the detention order, that a notice of the detention order 'shall' be given to the detenu 'by reading over the same to him.'

40. It would appear that the provision of Section 4 of the Act is not proved to have been complied with either by notifying to the detenu the substance of the warrant of arrest as required by Section 80, Criminal P.C. or by reading out to him the order of detention as directed by the detaining authority. I have indicated that there is no satisfactory evidence on behalf of the State to show the manner of arrest of these detenus and the fact of the service of the detention orders nor of the subsequent orders refusing to disclose the grounds of detention. It must therefore, be held that the arrests and detentions of these 12 detenus were illegal, not being in conformity with the aforesaid provision of law and the direction of the detaining authority.

41. I have however, been able to lay my hands on some decisions shown to me by learned brother Jaswant Singh J. I may refer to them in this connection with advantage. In S. Kesar Singh v. State, reported in A.I.R. 1963 J & K 23, a Single Bench of this Court held, on the interpretation of Section 4 of the Preventive Detention Act, which was similar to the present Section 4, that a warrant of arrest in pursuance to an order of detention under the Preventive Detention Act is governed by Section 46 and not S. B0, CrIPC. and that 'a detention order is not an arrest warrant as defined in the Code.' When ,the relevant provision of the Preventive Detention Act has not laid down that the detention order shall be treated as par with an arrest warrant except in the matter of executing it. This case followed a Division Bench of the Allahabad High Court in S. N. Tangri v. State of Uttar Pradesh in : AIR1961All542 , but with due respects to the Hon'ble Judges, who decided these cases, I am not quite in agreement with their views in this regard.

42. The order of detention, has to be executed in the same manner as a warrant of arrest. It is the detention order on the basis of which a detenu is arrested. The warrant of his arrest is not different from the order of detention. A detenu has to be told at the time of his arrest why and what for he is being arrested. It is manifest that the detenu must be served with the detention order and if so required by him, a copy of the order must also be furnished to him, even at some consequent stage. But surely at the time of his arrest, he has to be made aware of the detention order. In these cases evidence is wanting even with regard to the proper execution of the warrant of arrests of these 12 detenus. Then it may also be noticed that in the above two cases there is no indication that like the present cases, there was any ' direction ' by the detaining authority to execute the detention order by reading it out to the detenu at the time of his arrest, and, therefore, these decisions are not applicable to the facts of the cases in hand.

43. There is a Full Bench decision of this High Court in Mohamad Subhan v. State A.I.R. 1956 J&K1; (FB), in which the majority view, taken by Kilam and Shahmiri, JJ. (Wazir C J. differing) was that when the procedure laid down in Section 4 of the Act, which was again similar to the present Section 4 of the Act, was not strictly observed, the detention would be invalid. It was held that the procedure laid down by law has to be strictly observed and where deviation from the legal procedure is established, the detenu is entitled to be set free. Wazir C. J. however took the view that the provisions of Section 4 are directory and not mandatory, because of the use of the word 'may' therein referring to the execution of detention order, and, therefore, violation of it will not per se render the detention order illegal. I should, however, think that the provision of Section 4, even if it is directory, has to be substantially complied with in the execution of a detention order, since such an order curtails the liberty of a citizen without any trial. Any departure from properly executing a detention order should be fatal, to the legality of such an order. In the present cases, as it has been seen, the clear directions of the detaining authorities have been violated by not reading out to these detenus their respective detention orders at that time of their arrests or any time thereafter.

44. There is another Full Bench of this High Court in Hissam ud-din Bandey v. State A.I.R. 1955 J & K 7 (FB), in which it was again emphasised that in case under the Preventive Detention Act, 'the court has to see if the law as it is, has or has not been meticulously followed, and if it finds even a hairbreadth deviation made from the express provisions of law or a slight disregard of any direction given according to law it shall have no hesitation in declaring a detention under such circumstances quite illegal.'

45. For the reasons I have given above, I would hold that the detentions of the 12 detenus in the cases mentioned above, are illegal and. therefore, must be set aside.

46. The cases of the detenus in case Nos. 48, 49 and 68 are. however, different. They have made no grievance of any non-service of the detention orders, nor of the orders, withholding the grounds of detention. The only complaint made in case Nos. 48 and 49 is that on 17-11-68, when these two detenus were arrested, they were arrested 'without any warrant of arrest being read over or shown.' But there is no any averment that not even the detention order was read over or communicated to them or that the order refusing to disclose the grounds of detention order was not communicated to them. On the other hand, it has been admitted in paragraph 9 of each application that they had both received copies of their respective detention order as also the order refusing to disclose the grounds of their detention.

47. In case No. 68 also, it is admitted that the detenu was arrested under an order of the District Magistrate which is quoted and it is also admitted that the detenu was informed by an order which is again quoted intimating that the grounds of detention could not be disclosed to the petitioners. The two orders have been only characterised as illegal on account of their vagueness. which, as I have held already, they are not. The applications in these three cases Nos. 48, 49 and 68 are without merits and they are dismissed.

48. The applications in the remaining 12 cases are allowed and the detenus of these cases must be set at liberty forthwith unless they are wanted in any other connection. Thus petition Nos. 43, 52, 53, 64, 65, 66 and 81 of 1969 and petition Nos. 82, 83, 84, 85 and 86 of 1970 are hereby allowed.

Jaswant Singh, J.

49. I have gone through the judgment prepared by ray learned brother Hon'ble Anant Singh, in which he has discussed at length all the points raised by the learned Counsel for the parties. I agree with all the conclusions arrived at by him and have nothing useful to add.

Ali, C.J.

50. I agree with the judgment proposed by my learned brother Anant Singh J. but would like to add a few lines of my own.

51. As pointed out by Anant Singh J. I had taken a contrary view on the interpretation of Sections 3 and 5 of Jammu and Kashmir Preventive Detention Act in the case of Ghulam Nabi Hagroo v. State, where I had held that the clubbing together of an order Under Sections 3 (1) and 5 of the Act vitiates the order of detention. At that time, however, my attention was not drawn to a Division Bench decision of this Court in A.I.R. 1969 J & K 77, where a contrary view was taken and this decision was undoubtedly binding on me. Having gone through the Division Bench decision (supra) and the . reasons given by my learned brother Anant Singh J., for holding that the clubbing together of Sections 3 and 5 does not vitiate the order of detention. I am inclined to agree with the view taken by mv learned brother Anant Singh J. I feel that in view of the fact that the Government has already specified certain places where the detenus are to be detained and has empowered the detaining authority to detain the detenus at such place or places, a composite order passed Under Sections 3 and 5 of the Act does not appear to be invalid on this ground alone. The detention of a person and the place where he is to be detained are so closely interlinked with each other that one cannot find any real objection to a composite order being made containing both these aspects of the matter. For these reasons I am of the opinion that the view taken by me in Ghulam Nabi Hagroo v. State (Suprai was not quite correct because various aspects of the matter were not brought to my notice.

52. On the question of the service of the order of detention and the order by which the detaining authority decided to withhold the grounds of detention, I fully agree with my learned brother Anant Singh J. that in this case the service of these orders not having been proved in accordance with law, the detention orders are invalid and cannot be sustained. The liberty of a subject is an extremely cherished right and by detaining a person this right is put into jeopardy and the least that the detenu is allowed to do is to file a representation against the order of detention and if he is not served with the order of detention, even this statutory right which he possesses is denied to him. In the 12 cases referred to by Anant Singh J. there is a clear and categorical statement that the detention orders or orders withholding the grounds of detention were not served on the petitioners. In view of this clear recital it was for the respondents to prove affirmatively that service of these orders was made on the detenus in accordance with law. This fact could only be proved by producing the affidavits of the persons who served the orders on the detenus. This has not been done. The affidavit of the detaining authority that he was informed that service was effected on the detenus is clearly hearsay because there is no guarantee that the information which was given to him was in fact correct. In these circumstances the detention orders suffer from the infirmity that they were not properly served on the detenus. It is well settled that it is the duty of the detaining authority to pass orders of detention with due care and caution and to see that all the formalities required by law are observed. It the service of these orders are taken in a routine or a casual fashion, then the very democratic structure of our society would be eroded.

53. I, therefore, agree with my learned brother Anant Singh J. that the twelve petitions be allowed and the petitioners be directed to be set at liberty forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //