Jaswant Singh, J.
1. This is a petition Under Section 491, Criminal P.C. by one Bagh Hussain who was arrested on July 23, 1969, and detained with a view to prevent him from acting in a manner prejudicial to the-security of the State pursuant to Order No. DMR/9/69 dated July 12, 1969, passed by the District Magistrate, Rajouri, Under Section 3 of the Jammu and Kashmir Preventive Detention Act, 1964, hereinafter referred to as 'the Act.'
2. It appears from the affidavit by Shri I. D. Gupta, I. A. S. the District Magistrate, Rajouri, that the grounds on which the aforesaid order of detention of the petitioner waa made were not served on the detenu. Instead he was informed on September 24, 1969. of the direction of his predecessor in office that it would be against public interest to disclose to him the grounds on which hia detention order was made. Now although under the proviso to Sub-section (1) of Section 8 of the Act, it is open to the authority making the order of detention of the present nature to withhold the grounds of detention, if it considers that their disclosure would be against public interest, it is obligatory for that authority to pas an order to that effect and communicate the same to the detenu within ten days from the date of detention. If this is not done, the detention becomes illegal. In Fazal Hussain v. State of Jammu and Kashmir, : 1970CriLJ1649 the contention raised on behalf of the State that if an order hag been made under the proviso to Section 8 (1) of the Act, it does not matter whether the order is made and served beyond ten days specified in Section 8, waa rejected, while repelling the contention Hon'ble Sikri J. who spoke for the Court observed ;
We are unable to accept this contention. There is no doubt that it ia the duty of the detaining authority to communicate the grounds within ten days of the date of detention if the case doea not fall within the proviso. If the detaining authority neither communicates the grounds of detention nor informs the detenu under the proviso within ten days of the detention, the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal.
A similar point arose before thia Court in Abdul Jabbar Butt v. State of Jammu and Kashmir : 1957CriLJ404 . this Court waa then considering the Jammu and Eashmir Preventive Detention Act (IV of Samvat 2011) and similar provisions contained therein. Das C. J., observed: -
If the grounds are not communicated to the detenue within the period of time prescribed by the expression ''as soon as may be'' the detenu becomes deprived of his statutory right under Sub-section (1) and his detention in such circumstances becomes illegal aa being other, wise than in accordance with procedure prescribed by law. In order to prevent this reBult in certain specified cases the proviso authoriaea the government to issue the requisite declaration, so as to exclude entirely the operation of Sub-section (1). It, therefore, stands to reason and is consistant with the principle of harmonious construction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of Sub-section (1) should be exercised before that every result seta in.
Although there is some change in the language in the present act in substance the provisions are similar as far as the present point is concerned. We are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in 8. 8. Even from the practical point of view we are unable to see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest. All the material ia with the Government when it passes the order of detention and a period of ten days is ample for the government to make up its mind whether the case falls within the proviso or not.
3. It is manifest from a perusal of the above observations that an order declaring that it would be against public interest to communicate the grounds on which the order of detention baa been made must be passed and served on the detenu before the expiry of ten days specified in Section 8. As admittedly the District Magistrate Rajouri's Order No. S/13/69/(9)l, though passed within ten days of the detention waa served on the detenu after two months of the date of his arrest, the detention cannot be held to be valid.
4. For the foregoing reasons, I cannot but held that the detention of the petitioner ia illegal.
5. Accordingly I allow this application and direct that the petitioner be set at liberty forthwith.