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Ghulam Ahmad Ashai Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1954CriLJ1811
AppellantGhulam Ahmad Ashai
RespondentState
Cases ReferredGopalan v. State of Madras
Excerpt:
- .....an affidavit by mr. j. l. kharoo, under secretary. has been put on the file stating that all the orders passed by the dy. minister in charge law and order are sent to different departments under the signature of the secretary or the under secretary, but there is no explanation as to why in the face of the above practice the previous orders which were communicated to the detenu were signed by the dy. minister himself. there is force in the contention of the learned counsel that the order of 24th january should have been issued and communicated to the detenu under the signature of the person making it and there is no adequate explanation as to why it was not signed by the dy. minister concerned.we may make mention of the fact that the affidavit of mr. kharoo and some other papers were.....
Judgment:
ORDER

1. This is an application under Section 491, Criminal P, C., submitted by Mr. Ghulam Ahmad Ashai, a detenu, through the Superintendent of Sub-jail, Kud, praying for being released from detention on the ground that his detention was illegal. The application came up for hearing before a Single Bench of this Court and by order dated 5th of Har 2011, it was referred to the Pull Bench for decision. In view of the fact that the case was perhaps the first of its kind which came up for hearing after the promulgation of the presidential Order of 14-5-1954, we gave the parties ample opportunity to present their case in all its aspects and in fact we heard the counsel for a number of days.

2. On 9-8-1953 the petitioner was arrested and detained under an order of Mr. G. R. Thapa, Deputy Inspector General of Police, Kashmir, issued in exercise of powers conferred on him under Section 3, Act, 2003, as amended by Ordinance No. 1 of 2010. Mr. Thapa's order reads as under :

Whereas I, G. R. Thapa, Deputy Inspector General of Police, Kashmir, am satisfied with respect to Mr. G. A. Ashai son of Mr. Qadir Shah Ashai resident of Raj Bagh, that it is necessary to detain the said Mr. G. A. Ashai with a view to prevent him from acting in any manner prejudicial to the maintenance of public safety and peace;

Now, therefore, I, the said Deputy Inspector General of Police, Kashmir, in exercise of the powers vesting in me under Section 3, Jammu and Kashmir Public Security Act, 2003, read with the orders issued by the Government thereunder from time to time, order that the said Mr. G. A. Ashai be detained. I further order that the said Mr. G. A, Ashai be arrested for the purpose of detaining him and committed to custody in Central Jail, Srinagar.

Given under my hand this ninth day of August 1953.

3. The contention of the counsel for the petitioner is that the order is vague and not strictly in conformity with the law and, therefore, invalid. Our attention has been drawn by him to the following words used in the order :

read with the orders issued by the Government from time to time.

The learned Counsel for the petitioner contends that Mr. Thapa should have specifically mentioned the orders issued by the Government under which he purported to exercise his power of arrest and detention. According to the learned Counsel the absence of the mention of the specific orders of the Government has made the whole order vague and therefore invalid. As against this, it is argued by the Asstt. Advocate General that no particular form is prescribed in Section 3 of the Public Security Act in which an order of detention is to be drawn and as such the mere fact that the detaining authority has not set out in detail in the detention order the orders of the Government by which he is authorized to act under Section 3 would not invalidate the detention order.

It is true that no form, as argued by the Asst. Advocate-General, has been prescribed in Section 3 of the Public Security Act, but that does not mean that a free licence has been given to detaining authorities to draw their orders in a haphazard manner, without regard for the fact that these orders must not only show that the detaining authority was satisfied about the necessity of making a detention order, taut it must also show - and the detenu has a right to know-that the detaining authority was in fact authorized by the Government to take action under the relevant section. It is not a fact, as given by Mr. Thapa in his order of detention, that the said order was passed by him under powers vested in him by Section 3 of the Public Security Act. As a matter of fact it is the Government in whom the power to act under the said Act is vested and Mr. Thapa could act under this section only if he was authorized by the Government to do so. It is not denied that Mr. Thapa was authorized by the Government to act under this section, but we are of the opinion that it would have been quite in the fitness of things if Mr. Thapa had mentioned clearly the particulars of the Government orders authorizing him to act under 8. 3, But we need not pursue this matter any further. The applicant is detained at the present moment not under the order made by Mr. Thapa but by an order of the Government dated 4-4-1954. And it would be on the basis of this order that the validity or otherwise of the detention of the applicant has to be adjudicated upon.

3a. The Deputy Inspector-General of Police could order detention of the detenu for a limited period of two months. During these two months the detenu was transferred from Central Jail Srinagar, to the Central Jail, Jammu, by an order of the competent authority. His period of detention was extended by further two months by order of Mr. D. P. Dhar Dy. Minister in charge Law and Order who was competent to do so. On 18th October the petitioner was transferred from the Central Jail Jammu, to sub-jail, Kud, under the telephonic orders of the Health Minister as is evident from the letter of the Superintendent Central Jail, Jammu, to that effect. The counsel for the petitioner has argued that under the Public Security Act the power to order transfer of a detenu from one jail to another had been given to the Chief Secretary under Notification forming an annexure to C. O. No. 1050-C of 1953 and no to the Health Minister, and that therefore the detention of the petitioner onwards from 18-10-1953 -the date on which he was transferred to sub-jail, Kud - was illegal.

4. Prom the perusal of the record it appears that on 18-10-1953 the detenu was transferred to sub-jail, Kud, by an order of the Health Minister conveyed to the Superintendent Central Jail, Jammu, over the telephone. An order to the above effect purporting to have been passed by the Chief Secretary on that very date is on the file, but there is nothing on record to show that the order communicated by the Health Minister to the Superintendent, Central Jail, Jammu, on telephone was in compliance with the order passed by the Chief Secretary. The Asstt. Advocate General has argued that the Health Minister, being the Minister in charge of jails, had merely acted as a transmitting channel in communicating to the Superintendent, Central Jail, Jammu, on telephone the order of the Chief Secretary directing the transfer of the detenu from Jammu to Kud. It may be so, but there is nothing on record to support this contention. As the record stands, the Superintendent, Central Jail, Jammu, appears to have acted on the order which he received from the Health Minister and not on the order passed by the Chief Secretary and, therefore, the transfer of the detenu from the Central Jail, Jammu, to Sub-Jail, Kud, was not proper according to law. Even as it is, we have yet to see as to whether this Invalid transfer can in any way invalidate the present detention of the applicant which is as a result of the order dated 4-4-54 already mentioned above.

5. Another objection taken by the counsel for the petitioner relates to the order passed by the Dy. Minister in charge Law and Order, dated 24-1-1954, extending the period of detention by further two months. The order which was served on the detenu did not bear the signature of the Dy. Minister in charge Law and Order but was forwarded to the Superintendent, sub-jail, Kud, under the signature of an Under Secretary to the Home Ministry. The contention of the learned Counsel for the petitioner is that whereas the previous orders of extension issued by the Dy. Minister and served on the detenu were signed by the Dy. Minister himself, the order of 24-1-1954 was not signed by him and was therefore not a valid order. An affidavit by Mr. J. L. Kharoo, Under Secretary. has been put on the file stating that all the orders passed by the Dy. Minister in charge Law and Order are sent to different departments under the signature of the Secretary or the Under Secretary, but there is no explanation as to why in the face of the above practice the previous orders which were communicated to the detenu were signed by the Dy. Minister himself. There is force in the contention of the learned Counsel that the order of 24th January should have been issued and communicated to the detenu under the signature of the person making it and there is no adequate explanation as to why it was not signed by the Dy. Minister concerned.

We may make mention of the fact that the affidavit of Mr. Kharoo and some other papers were put on file by the Asstt. Advocate General after the case was listed for hearing before the Full Bench, and not when return was filed before the single Bench of this Court. We find ourselves unable to encourage such a practice which in effect means the strengthening of one's case by submitting fresh affidavits and papers to tide over the weakness pointed out during arguments at an earlier stage by the other side. These papers would never have found their place on the file if the case were not submitted to a Pull Bench. And this fact too remains unexplained as to why the original order, said to have been passed by the Dy. Home Minister pursuant to which Mr. Kharoo swears that he forwarded another order to the Superintendent of Jail, Kud, regarding extension of the detenu's period of detention, was not produced before us. It should be borne in mind by all concerned that an order like the one before us is not an executive order, but is an order under a statute. When a statutory duty is cast upon an authority to do a certain act, it is that authority which must do that act and sign all orders passed under the said statute. Without express powers granted by the Statute itself, the said authority cannot delegate its powers to any authority whatsoever.

6. Now let us deal with the order relating to the present detention of the petitioner. On 4-4-1954 the Government revoked the previous order of detention and passed a fresh order under Section 3 of the Public Security Act as amended by Act 13 of 2010. This order was served on the detenu on the 6th of April and he made the present petition on that day challenging the orders of detention. The above fresh order of detention was issued under the signature of the Chief Secretary, Mr. M. K. Kidwai. The order purports to have been passed by the Government of Jammu and Kashmir and is as follows :

Whereas the Government are satisfied with respect to Ghulam Ahmad Ashai son of Khawja Qadir Shah resident of Raj Bagh, Srinagar, that with a view to prevent him from acting in any manner prejudicial to the maintenance of public safety and peace; it is necessary to make the following order :

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Jammu and Kashmir Public Security Act, 2003, as amended by Act 13 of 2010, the Government hereby make this order, directing that the said Ghulam Ahmad Ashai be detained in subsidiary jail, Kud, with effect from this day, the 4th of April 1954.

Notice of this order shall be given to the said Ghulam Ahmad Ashai by reading out this order to the said Ghulam Ahmad Ashai.

By order of the Government.

7. A number of grounds have been taken by the petitioner's learned Counsel to assail this order. As already stated, on 4-4-1954 the Government made two orders : by one it purported to revoke the previous order of detention, and the other was a fresh detention order. The petitioner's learned Counsel argued that the Government had no power under Section 3 of the Public Security Act to revoke a previous detention order and pass a fresh one. This argument is based on the ground that the word used in Section 3 of the Public Security Act as amended by Ordinance 1 of 2010 is 'revised' and not 'revoked'. Much hair-splitting and legal quibbling was had recourse to in discussing the meaning of the words 'revised' and 'revoked'. Whether or not the Government had a right in the technical sense of the term to pass an order of revocation, loses all its importance when it is borne in mind that the Government has a right of releasing any detenu at any time. Anyway, the question is whether the Government had the right to pass a fresh order of detention, if it came to the conclusion that the previous order of detention was defective on any grounds whatsoever. If it can be shown that the Government has such a right, any irregularities or illegalities of the period prior to the making of the fresh valid order would in no way affect the merits or the result of the case. Reference may in this connection be made to - Basanta Chandra v. Emperor AIR 1945 FC 18 (A) in which it has been held that :

Where the earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Court. Order of detention can be passed against a person who is already under detention.

In this authoritative pronouncement of their Lordships of the Federal Court it has been clearly laid down that if at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid order for detention. In - Naranjan Singh v. State of Punjab (I) AIR 1952 SO 106 (B) the same view has been taken and it has been held that :

As in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings, in the absence of proof of bad faith, the detaining authority can supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.

8. The learned Counsel for the petitioner submitted that the Supreme Court authority is based on Section 13 of the Preventive Detention Act which empowers the Government to revoke the previous order and pass a fresh order. On perusal of this authority of the Supreme Court it would be clear that the case AIR 1945 FC 18 (A)' referred to above was considered by the Supreme Court and the ratio decidendi of that case was approved. The Supreme Court has further remarked : Indeed, the position is now made more clear by the express provisions of Section 13 of the Act which provides that a detention order may 'at any time' be revoked or modified and that such revocation shall not bar the making of a fresh detention order under Section 3 against the same person.

9. It is further contended that Section 19 of the Preventive Detention Act is ultra vires inasmuch as it is opposed to the spirit of the Constitution and the principles of natural justice because it takes away vested rights.

10. No statute can be held invalid on the ground that it is opposed to the spirit of the Constitution. Whether an Act is ultra vires or not has to be seen with reference to the provisions of the Constitution alone and nothing else. It is a fundamental rule of interpretation of statutes that there should always be a leaning towards holding a statute as constitutional and intra vires. This principle has been recognised in a number of rulings of the Indian High Courts and has also been approved by our High Court. In Asiatic Engineering Co. v. Achhru Ram : AIR1951All746 it has been held that it is obvious that in order that a law may be invalid, the opposition between the Constitution and the law must be of the clearest nature possible. It is a well established principle that it is incumbent on the Court to adopt such a construction of a statute as will, without doing violence to the language of the statute or the words used, reconcile it with the Constitution, Reference in this connection may also be made to Gopalan v. State of Madras : 1950CriLJ1383 where it has been held :

Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon Legislature, Courts cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument....

In these circumstances it cannot be said that Section 19 is ultra vires of the Constitution on the ground that it is not in accordance with the spirit of the Constitution. As we have it Section 19 validates the orders of detention which were passed or purported to have been passed under the provisions of any of the laws repealed by Section 19 of the Preventive Detention Act and further directs that the detenu shall continue to be detained for a period of six months from the date of the commencement of the Preventive Detention Act.

11. It is further contended by the petitioner's learned Counsel that Section 19 is of the nature of an ex post facto law which has been framed to govern the cases of those detenus who were arrested under earlier laws now repealed arid whose remedies available to them then have now been taken away from them. He has made a reference to Article 20 of the Constitution which lays down that a person should be tried and sentenced according to the law which was in force at the time of the commission of the offence. Analogically the learned Counsel tries to argue that similarly the detenu should be dealt with according to that law which was in force at the time when his detention was ordered. It is true that Article 20 forbids the trial and conviction of a person according to a law which was not in force at the time when the offence was committed; but proceedings under Preventive Detention Act are not judicial proceedings and preventive detention by Itself is not a conviction or sentence of imprisonment. It was contended with great vehemence that Section 19 is very wide in its scope and has deprived the detenu of the remedies which were available to him according to the previous law. It may be so but the courts have to administer the law as it is and not to declare as to what the law should be.

12. The Asstt. Advocate General has argued that in the presence of Section 19 of the Preventive Detention Act the Court is barred from even questioning the validity of the order dated 4-4-1954. It may not be denied that Section 19 appears to limit the powers of this Court in respect of those detentions to whom Section 19 applies but it has to be kept in view that the powers of issuing writs of habeas corpus are guaranteed to this Court by the Constitution and also similar orders can be issued under Section 491, Cr. P. C. No doubt the scope of Section 19 is wide enough yet it does not affect the power of the High Court to scrutinize the orders under which detentions are made. The Court has to see whether the detention order which is challenged is made or appears to have been made under a valid law. If a detention order appears to have been made under a valid law the Courts cannot interfere with that order and cannot release the detenu but if the circumstances show that the order has no semblance of having been made under any valid law in respect of detention the Courts can release the detenu.

13. In the present case the order passed by the Government on 4-4-1954, under Section 3 (1) of the Public Security Act as amended by Act 13 of 2010 is a valid order and the counsel for the petitioner has not been able to show any material defect in that order.

14. In these circumstances we do not find any force in this application which is rejected.


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