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Karim Bux and ors. Vs. State of Jammu and Kashmir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1969CriLJ907
AppellantKarim Bux and ors.
RespondentState of Jammu and Kashmir
Cases Referred and Godavari Shamrao Parulekar v. State of Maharashtra
Excerpt:
- jaswant singh, j.1. these are three applications under section 491 of the code of criminal procedure and section 104 of the state constitution for issue of writs in the nature of habeas corpus directing the release from detention of the petitioners and shall be disposed of by this judgment as they raise common question.2. the facts relevant for the purpose of these applications are:-in petition no. 3 of 1968, the district magistrate jammu by his order dated 14-3-1967 passed under rule 30(1)(b) of the defence of india rules read with jammu and kashmir government notification no. sro-149 dated 23-4-1965 directed the detention of the petitioner in the central jail, jammu with a view to preventing him from acting in any manner prejudicial to the defence of india, the public safety and the.....
Judgment:

Jaswant Singh, J.

1. These are three applications under Section 491 of the Code of Criminal Procedure and Section 104 of the State Constitution for issue of writs in the nature of Habeas Corpus directing the release from detention of the petitioners and shall be disposed of by this judgment as they raise common question.

2. The facts relevant for the purpose of these applications are:-

In petition No. 3 of 1968, the District Magistrate Jammu by his order dated 14-3-1967 passed under Rule 30(1)(b) of the Defence of India Rules read with Jammu and Kashmir Government Notification No. SRO-149 dated 23-4-1965 directed the detention of the petitioner in the Central Jail, Jammu with a view to preventing him from acting in any manner prejudicial to the defence of India, the public safety and the maintenance of public order. The petitioner continued to be detained under the Defence of India Rules as stated above, but on 3-1-1968, in view of the termination of the proclamation of emergency the State Government revoked the order of detention of the petitioner under the Defence of India Rules and passed a fresh order of detention of the petitioner under Section 3(1) of the Preventive Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order. The grounds of the fresh order of detention were communicated to the petitioner on 12-1-1968 and he was afforded an opportunity of making a representation against the order to the Government. The petitioner thereupon, submitted his objections to the Government on 2-2-1968. The case of the petitioner was, thereafter referred under Section 10 of the Jammu and Kashmir Preventive Detention Act, 1964 to the Advisory Board constituted under Section 9 of the said Act and the Board having reported that there was in its opinion sufficient cause for the detention of the petitioner, the Government acting under Section 12(1) of the said Act passed order No. ISD 594 of 1968 dated 26-6-1968 confirming the order of detention of the petitioner and further directing the continuance of his detention upto 30th April, 1969. As a result of this order, the petitioner, has continued to be detained under the Preventive Detention Act.

3. In petition No. 4 by order No. DIR DM/21/66 passed by the District Magistrate Srinagar on 17-2-1966, under Rule 30 of the Defence of India Rules, the petitioner Abdul Sattar Khanday was detained with a view to preventing him from acting in a manner prejudicial to the Defence of India, civil defence, the public safety and the maintenance of public order and peaceful conditions in the State of Jammu and Kashmir. The termination of proclamation of emergency being in view, the State Government revoked the aforesaid detention Order dated 12-7-1966 after considering the materials appearing against the petitioner and being satisfied that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public Order, it was necessary to detain him, passed a fresh order directing his detention under Section 3(1) of the Jammu and Kashmir Preventive Detention Act of 1964. This order was passed on 5-1-1968 and was served on the petitioner on 6-1-1968, After communicating the grounds of the fresh order of detention to the petitioner on 14-1-1968 and affording him an opportunity of making a representation against the order of detention, the Government referred the case of the Petitioner to the Advisory Board on 20th Feb. 1968 as required by Section 10 of the Preventive Detention Act. The Advisory Board after consideration of the case communicated its opinion to the Government on 3-6-1968 and pursuant to the recommandation of the Board, the Government confirmed the order of detention passed against the petitioner and directed the continuance of his detention upto 30th April, 1968.

4. In petition No. 5 of 1968, the petitioner Abdul Samad Wani, it appears was first arrested in pursuance of Government order No. ISD-502 of 1965 dated 19-10-1965 under Rule 30(1)(b) of the Defence of India Rules, with a view to preventing him from acting in any manner prejudicial to the defence of India, Civil defence, the public safety and the maintenance of public order and peaceful conditions in the State of Jammu and Kashmir. In this case also, in view of termination of proclamation of emergency the aforesaid detention order dated 19-10-1965 was revoked and after considering the materials appearing against the petitioner and being satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to public order, it was necessary to pass a fresh order of detention, the Government, vide its order No. 51 of 1968 dated 5th January 1968, directed the detention of the petitioner under Section 3(1)(b) of the Jammu and Kashmir Preventive Detention Act. In this case also a copy of this order was served on the petitioner on 6-1-1968. The grounds of detention were communicated to the petitioner vide No. ISD-220 of 1968 dated 12-1-1968 which was actually delivered to the petitioner through the Superintendent, Jail, Srinagar on 14-1-1968. The petitioner was also afforded an opportunity of making a representation against the order of his detention to the Government. Thereafter, the case of the petitioner was forwarded to the Advisory Board along with the requisite material on 20-2-1968. The Advisory Board made its report to the Government on 3-6-1968 and in pursuance of the recommendation of the Board, the order of detention of the petitioner was confirmed by the Government on 30-6-68. According to the affidavit of the Home Secretary, the detention of the petitioner is also to continue upto 30th April, 1968.

5. Mr. Tussaduq Hussain, appearing for the petitioners has submitted that the detention of his clients is invalid because:

(1) The orders detaining them are bad on the very face of them inasmuch as composite orders under Sections 3 and 5 of the Preventive Detention Act containing directions as to the detention of the petitioners and the places of their detention could not have been passed specially in view of the fact that Section 5 of the Act comes into play only after an order under Section 3 of the Act has been made and conveyed to the persons sought to be detained.

(2) The orders of detention are bad as they merely reproduce the language of Section 3 of the Preventive Detention Act and do not disclose the information on which those orders are based.

(3) The Advisory Board constituted under Section 9 of the Preventive Detention Act is a judicial or a quasi-judicial body and has acted against the principles of natural justice by failing to give notice to the petitioners calling upon them to show cause why their detention should not be recorted to be justified.

(4) Section 12 of the Preventiye Detention Act which requires two notices to be given to the detenu, one prior to the reference of his case to the Advisory Board and the other after the receipt of the report from the Advisory Board but before confirming the order of detention has been violated.

(5) The Preventive Detention Act in so far it provides for detention of a person-for reasons of security of State is ultra vires and beyond the competence of the State Legislature.

(6) The present detention of the petitioners under the Preventive Detention Act particularly for security of the State is not covered by the reasons connected with the Defence of India for which their detention was originally ordered under the Defence of India Rules.

(7) The petitioners' activities as alluded to in the grounds of their detention being such as could be the subject matter of prosecution and punishment under the penal law of the laud could not be made the subject matter of their detention.

(8) The petitioners being already under detention, fresh orders of their detention could not be passed and served on them in jail.

The Addl. Advocate General appearing for the State has on the other hand contended that composite orders are not bad, that the Preventive Detention Act does not require that the information on the basis of which the order of detention is passed should be disclosed in the order, that the Advisory Board does not exercise judicial or quasi judicial functions and that there is no question of violation of principles of natural justice or of any notice being Riven to the detenu by the Board or by the Government either before making the reference to the Advisory Board or after the receipt of the report from the Board, that Section 12 of the Preventive Detention Act does not require issue of the two notices as urged by the learned Counsel for the petitioners, that the Preventive Detention Act, is not ultra vires of the powers of the State Legislature, that the reasons for which the present detention of the petitioners has been ordered are covered by the reasons for which the detentions were ordered under the Defence of India Rules, that it was open to the State Government to detain a person even though his unlawful activities may be punishable under the penal law of the land, that the fact that the petitioners were already in detention could not prevent the State Government from passing fresh orders of their detention, under the Preventive Detention Act.

I shall take up seriatim the various contentions advanced by the learned Counsel for the petitioners.

6. Regarding the first contention of the petitioners' learned Counsel it may be observed that the point sought to be made is not of vital importance so as to affect the validity of the orders of detention passed against the petitioners. None of these orders can be said to be bad simply because it is a composite order. The orders satisfy the requirements of law. They clearly state the reasons for and the necessity of detention. In each case the order is clearly severable and can be split up in two parts, the first part of the operative portion of the order containing direction as to detention appears to have been passed in exercise of the powers conferred on the Government under Section 3 of the Preventive Detention Act and the second part specifying the place of detention appears to have been passed in exercise of the powers conferred on it under Section 5 of the Act. A composite order of this character cannot, in our opinion, render the order invalid. In fact, the failure to specify the place of detention would create difficulties and make the order of detention ineffective. In a similar matter the Bombay High Court in Prahlad Kishna Kurana v. State of Bombay : AIR1952Bom1 , observed as follows:--.Of course both the directions viz. the direction as to the 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 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.

In view of the foregoing, we find no substance in this contention of the learned Counsel for the petitioner which is repelled.

7. The second contention of the learned Counsel for the petitioner is also misconceived. The Preventive Detention Act, no doubt provides that grounds on which an older of detention has been made should be communicated to the detenu vyithin ten days from the date of detention and the detenu should be afforded an opportunity of making a representation against the order to the Government but the Act nowhere provides that the information on which the order is based should be stated in the order of detention. Mr. Tassaduq Hussain asks us to read into the Act something which is not there. This we cannot do. The authority reported in 1958(1) All ER 679, and relied upon by the learned Counsel for the petitioners has also no bearing on the point in question and does not help the petitioners. In this case the House of Lords was merely concerned with the nature of proof in a prosecution for an offenca contrary to Section 56(1)(a) of the Mental Deficiency Act, 1913. The second contention of the learned Counsel for the petitioner must also, therefore be rejected.

8. Let us now examine the third contention of the learned Counsel for the petitioner that the Advisory Board is a judicial or a quasi judicial body and it should have given a notice to the petitioners before making a report to the Government about the sufficiency of the cause for the petitioners' detention. As held after exhaustive consideration of the judicial decisions bearing on the point in Ridge v. Baldwin 1964 AC 40 : Rex v. Electricity Commissioner, Ex Parte, London Electricity Joint Committee Co. 1924-1 KB 171 (205) and Rex v. Legislative Committee of the Church Assembly; Ex parte Haynes Smith 1928-1 KB 411, before it can be said that a body of persons have to act judicially it must be shown not only that the body had legal authority to determine the questions affecting the rights of the subjects but also that it has a duty to act judicially. As said by Lord Hewart C.J. in Rex v. Legislative Committee of the Church Assembly; Ex Parte Haynes Smith 1928-1 KB 411, it is the obligation to act judicially that determines whether a body is a judicial or quasi judicial body.

9. The Privy Council expressed similar views in Nakkuda Ali v. Jayaratne 1951 AC 66 at p. 77. While considering the order passed by the Controller of Textiles in Ceylon under a Defence Regulation which empowered him to cancel a license 'where the controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer' the Privy Council held that it did not follow from the words of the relevant Defence Regulation that the Controller must be acting judicially in exercising the power. It is a long step, said the Privy Council, in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believing something he can only arrive at that behalf (belief?) by a course of conduct analogous to the judicial process. And yet, unless that proposition is valid, there is really no ground for holding that the Controller is acting judicially, or quasi judicially when he acts under this regulation. If he is not under a duty so to act, then it would not be according to law that his decision would be amenable to review and if necessary to avoidance by the procedure of certiorari.

10. The illuminating observations made in Board of High School and Intermediate Education U.P. v. Ghanshyam Das : AIR1962SC1110 are also worth quoting. Their Lordships of the Supreme Court observed in that ruling as follows:--

The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion, if any, to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute.

Now an examination of the relevant provisions of the Preventive Detention Act, and its scheme would show that the Advisory Board is not a judicial or a quasi judicial body. It has merely to consider whether there was sufficient cause for the detention of the person concerned. It has to form its opinion in the light of the order of detention, the grounds thereof, the representation, if any, made against his detention by the detenu and such further information as the Board may deem necessary to call. It is not obligatory on the Board to hear the person concerned unless he actually desires to be heard. In forming its opinion, there is no question of the Board taking into account any subsequent events of developments. The Board is merely concerned with the initial order of detention which is based on the subjective satisfaction of the Government, Further even in a case where the Board reports that there is in its opinion sufficient cause for detention of the persons the Government has still a discretion to confirm or not to confirm the order of detention. The Board does not, therefore, in our opinion discharge any judicial or quasi judicial function.

11. While repelling the contention of the detenu that the report of the Advisory Board is a judgment of a judicial or a quasi judicial tribunal, their Lordships of the Madras High Court in Muthuramalinga Thevar v. State of Madras AIR 1958 Mad 425 observed as follows:--

The endeavour of Mr. Kumaramangalam was to equate the report referred to in Sub-sections (1), (2) and (3) of Section 10 and Section 11(1) of the Act to be a judgment of a judicial or a quasi judicial tribunal where the reasons on which the opinion of the Advisory Board was based were set put. We are unable to accept the contention of Mr. Kumarmangalam that the language of Section 10 of the Act warrants the imposition of such a statutory Board, that its opinion should be backed by or be based on a report containing the reasons for its opinion.

All that Section 10(1) requires is that the Advisory Board should submit its report within the time specified. What that report should contain, Section 10(1) itself does not prescribe. No doubt Section 10(2) draws an apparent distinction between the report and the opinion of the Advisory Board, which is also reported to the Government. While the opinion has to specify whether or not there is sufficient cause for the detention of the person concerned, even Section 10(2) does not prescribe what else the report should contain. Nor does Section 10(3) which guarantees the secrecy of the report but provides for the publication of the opinion of the Advisory Board even if that opinion forms an integral part of the report.

Mr. Kumaimangalam was right when he pointed out that while Section 11(2) of the Act left no discretion to the Government when the Advisory Board reported that in its opinion there was no sufficient cause for the detention, where the Advisory Board reported that in its opinion there was sufficient cause for that detention, Section 11(1) vested a discretion In the Government either to confirm the order of detention or to revoke it.

But we are not able to accept the further contention of Mr. Kumarmangalam that before exercising the statutory power under Section 11(1) of the Act at its discretion the Government was bound to take into account both the report and the opinion of the Advisory Board. What both Sub-sections (s (1) and (2) of Section 11 require of the Government is that it should consider the opinion of the Advisory Board reported to it by that Board. It 'certainly could not be urged that where factually there was no report apart from the opinion, there was no sufficient cause for the detention, the Government could ignore the opinion and treat it as non est in law.

It is the opinion of the Advisory Board that is relevant both under Sub-sections (1) and (2) of Section 11, the opinion of the Advisory Board reported by that Board to the Government. If the report, independent of the opinion, is not what the Government is bound by law to consider either under Section 11(1) or under Section 11(2) of the Act, the furtner question of what the report should contain to satisfy the statutory requirements cannot arise for consideration. The language of Section 11(1) in our opinion, gives no indication of what the 'report referred to in Sections 10(2) and 10(3) should contain.

In Parkash Chandra v. Union of India , it was held that the Advisory Board does not exercise the function of a Court. Its duty was merely to report about the sufficiency of the cause for detention.

12. In Calcutta Dock Labour Board v. Jaffar Imam : 1966CriLJ189 , their Lordships have observed that the Advisory Board does not try the question about the propriety or validity of citizen's detention as a Court of law would and' its function is limited to consider the relevant material placed before it and the representation received from the detenu and then to submit its report to the State Government within the time specified by Section 10(1) of the Act. While considering the matter their Lordships further went on to observe as follows:--

It is obvious that the Advisory Board does not try the question about the propriety or validity of the citizen's detention as a court of law would, indeed, its function is limited to consider the relevant material placed before it and the representation received from the detenu, and then submit its report to the State Government within the time specified by Section 10(1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross examination; its decision is essentially different in character from a judicial or a qussijudicial decision. In some cases, a detenu may be given a hearing, but such a hearing is often, if not always likely to be ineffective, because the detenu is deprived of an opportunity to cross examine the evidence on which the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him. Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal Court.

In P. L. Lakhanpal v. Union of India : [1967]1SCR433 , their Lordships of the Supreme Court while considering the scheme of the Defence of India Rules and that of the Preventive Detention Act, observed at page 915 as follows:--

In the first place the scheme of the Preventive Detention Act is entirely different from the Act and the Rules before us. Section 3 of the Act confers power of detention. Section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. Section 8 requires the setting. up of Advisory Board. Section 9 requires reference of the order passed by the authority to such Advisory Board together with the representation if any, made by the detenu. Under Section 10 the Board has to make a report to the Government and the report would be whether there is sufficient cause for detention or not. Under Section 11 the Government may confirm the detention order and continue the detention where the report is that there is sufficient cause. But where the Board reports that there is no such sufficient cause, the Government has to revoke the detention order. It is clear from Section 9 and the Section: following it that the Government has to make the reference to the Board: within 30 days from the order and the Board has to find whether there is sufficient cause for detention or not. The review of the Board is thus almost contemporaneous. If, therefore, the Board finds that certain grounds furnished to the detenu did not in fact exist, it means that it did not make up its mind to pass the order. It is for that reason that the courts have held that since the order is based on subjective satisfaction it is not possible to say whether or not the grounds found not to have existed affected the process of satisfaction of the authority or not and to say that those only which existed had made up the satisfaction would be to substitute the-court's objective test in place of the subjective satisfaction of the detaining authority. The scheme of Rules 30(1) and 30A is totally different from that of the Preventive Detention Act. Where an order is made under Rule 30(1)(b) its review is at intervals of periods of not more than six months. The object of the review is to decide whether there is a necessity to continue the detention order or not in light of the facts and circumstances including any development, that has taken place in the meantime. If the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order no longer subsist or that some of them do not subsist, that is not to say that those reasons did not exist at the time of passing the original order and therefore, the satisfaction was on grounds which did not then exist. It is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in Rule 30(1). At the end of six months the reviewing authority on the materials before it may come to a decision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but not all the matters. Provided such decision is arrived at within the scope of Rule 30A the decision to continue the detention order would be sustainable. There is thus no analogy between the provisions of review in the two acts and therefore decisions on the Preventive Detention Act cannot be availed of by the petitioner.

In view of these authorities, we are unable to accede to the submission of the learned Counsel for the petitioner that the Advisory Board is a judicial or a quasi judicial body.

13. That apart, there is no provision in the Preventive Detention Act requiring that an opportunity should be given to the detenu by the Board for making a representation to it. In this connection the following passage occurring in the aforesaid ruling of the Bombay High Court (i. e. : AIR1952Bom1 may be perused with advantage:

The last contention of Mr. Sule is that after the case of the detenu was referred to the Advisory Board by the Government of Bombay under Section 9 of the Act no opportunity was given to him for making a representation to the Advisory Board. Now we have carefully considered the combined effects of Sections 9 and 10 of the Act and we find that the said sections do not contemplate that apart from the opportunity which the Act requires to be given to a detenu to make a representation under Section 7 any further opportunity is to be given to him to make a representation to the Advisory Board after his case is referred to the said Board by Government. If on his own accord the detenu makes another representation before the matter is put before the Advisory Board by Government, that representation has of course to be forwarded by Government to the Advisory Board under Section 9 of the Act, Section 9 says that in every case where a detention order has been made under the Act, the appropriate Government shall within six weeks from the date specified in Sub-section (2) place before an Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order. It is clear, therefore, that whatever, the number of representations which the detenu might have made to Government before his case is sent to the Advisory Board, Government is bound to forward them to the Board for consideration and examination. The Board is not called upon to ask for any representation from the detenu. Section 10 savs that when the case is referred to the Advisory Board, the said Board shall after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from the person concerned and if in any particular case it considers it essential after hearing him in person, submit its report to the appropriate Government.

It is clear, therefore, that the question whether the Advisory Board should call for any further information from the detenu or should give him an opportunity of being heard in person is left entirely to the discretion of the Advisory Board. It is not incumbent upon the Board to give an opportunity to the detenu to make a representation to them, nor is it incumbent upon them to hear him in person.

The following observations made in Jagan Nath Sathu v. Union of India : 1960CriLJ764 , are also worth perusing in this connection:--

Coming now to the submission that the respondent's case was heard before the petitioner's case and in his absence and that copies of further materials placed before the Advisory Board by the respondent were not supplied to the petitioner, it is necessary to refer to the procedure to be adopted by the Advisory Board under the provisions of the Act. Under Section 9 in every case where a detention order has been made the appropriate Government must within thirty days from the date of detention place before the Advisory Board the grounds on which the order has been made, and the representation, if any, made by the detenus and in a case where an order has been made by an officer, also the report by such officer under Sub-section (3) of Section 3. Section 10 sets out the procedure which the Advisory Board must follow when reference has been made to it under Section 9. Section 10(1) states:--The Advisory Board shall, after considering the materials placed before it, and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person submit its report to the appropriate Government within ten weeks from the date of detention. It is clear from these provisions that the Advisory Board after considering the materials placed before it under Section 9 can call for further information from the appropriate Government, and that thereafter if in any particular case, it considers it essential so to do or if the detenu desires to be heard, after hearing him submit its report to the appropriate Government, In such a situation the Advisory Board must of necessity obtain further information from the Appropriate Government before it hears the detenu. In our opinion, there is nothing in Section 10 which offends against the principles of natural justice.

Keeping in view the procedure to be adopted by the Advisory Board and the principles enunciated in the decisions set out above, we need not dilate on this point any further.

14. Mr. Tassaduq Hussain, learned Counsel for the petitioners, has urged that the observations made by their Lordships of the Supreme Court in : 1966CriLJ189 (supra) are obiter dicta and as such are not binding on this Court. After carefully going through the authority, we regret we are unable to accept this contention of the learned Counsel for the petitioners. Moreover, it is well settled that the observations of the Supreme Court even if obiter dicta are entitled to the highest respect,

15. The learned Counsel has also referred us to a ruling of the Supreme Court reported as : [1965]3SCR218 , but that ruling in our opinion does not help the petitioners. Their Lordships of the Supreme Court were, therein, considering a case where the State Government acting in exercise of its revisional powers under Section 7-F of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947, had issued a direction to the Commissioner to revise his order refusing permission to file a suit for ejectment against the tenants without issuing a notice to or giving an opportunity to them to place their version before it. After examination of the scheme of the Act and its relevant provisions their Lordships came to the conclusion that in revisional proceedings under Section 7-F of the Act, the State Government must adopt a judicial approach, considering the matter in a quasi judicial manner and follow the principles of natural justice before reaching its conclusions. In the instant case as already pointed out after examination of relevant provisions of the Preventive Detention Act, the Advisory Board does not discharge judicial or quasi judicial functions.

16. In connection with the contention regarding principles of natural justice to be followed by the Advisory Board, it would be relevant to refer to a ruling of the Supreme Court reported as : AIR1967SC122 , where their Lordships quoted with approval their earlier observations made in Nagendra Nath Bora v. Commissioner of Hills Division : [1958]1SCR1240 , that, 'the rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened should be decided not under any preconceived notion but in the light of the statutory rules and provisions.' We, therefore, find ourselves unable to accept the third contention of the learned Counsel for the petitioners.

17. The next contention of the learned Counsel for the petitioners that under Section 12 of the Preventive Detention Act two notices one before making a reference to the Advisory Board and the other on receipt of the report from the Advisory Board, ought to have been given to the detenus is equally without any substance. Section 12 of the Act which sets out the procedure to be followed by the Government after the receipt of the report from the Advisory Board does not contemplate any such notice.

18. The Preventive Detention Act merely provides for one opportunity to the detenu to make a representation to the Government against the order of detention. There is no statutory provision or rule which prescribes that the Government has to make a judicial approach or discharge judicial function while confirming the order of detention. The preventive detention as distinguished from punitive detention as observed in : AIR1951Pat389 has necessarily to proceed in all cases to some extent on suspicion or anticipation as distinguished from proof. The learned Counsel for the petitioners has also referred to a ruling of the Supreme Court P. L. Lakhanpal v. Union of India : [1967]3SCR114 , to show that in confirming the order of detention the Government has to act judicially and the aforementioned notices ought to have been issued to the detenus before reference of their cases to the Advisory Board after the receipt of the reports from the Board but the authority is clearly distinguishable as their Lordships were therein considering the scope of the power of review under Rule 30-A (9) of the Defence of India Rules, after the detention of a detenu has gone on for a period of six months, which has no analogy to the question of confirmation of detention under Section 12 of the Preventive Detention Act. The learned Counsel for the petitioners also tried to reinforce his submission by reference to Article 311 of the Constitution but here again there is no analogy between the provisions of Article 311 of the Constitution and Section 12 of the Preventive Detention Act. The fourth contention of the learned Counsel for the petitioners must also therefore, be rejected.

19. The 5th contention of the learned Counsel for the petitioners is also based on a misconception of the true constitutional position. Legislation with respect to preventive detention for defence of India no doubt falls within the competence of Parliament as it is covered by Entry 9 of the Union list but preventive detention for reasons connected with the security of State falls within the concurrent list and as such is within legislative competence of a State Legislature as well. It is also to be borne in mind that unlike other States of India, the residuary power of legislation vests in our State legistature and in peace times our State Legislature alone is competent to enact a law with respect to preventive detention for reasons of security of the State. All this would be evident from a combined study of Article 370 and Chapter 1 of Part XI of the Constitution of India read with Schedule 7 thereof as applied to the State.

A reference to that part of the Constitution of India which relates to the distribution of legislative powers between the Union and the States and to the Constitution (Application to Jammu and Kashmir) Order 1954 would show that whereas in the rest of India, the Union and the State Legislature have both concurrent powers of legislation with respect to preventive detention for reasons connected with the security of a State i.e. both the Central and the State Legislature can operate in this common field, the position is peculiar so far as the State of Jammu and Kashmir is concerned. Entry 97 of List 1 (Union List) and Entry No. 3 of List 3 (Concurrent list) of the 7th Schedule having been omitted from applicability to the State of Jammu and Kashmir the State Legislature has exclusive power of legislation in respect of preventive detention for reasons connected with the security of the State. The provisions of the Jammu and Kashmir Preventive Detention Act in so far as they relate to detention for reasons of security of State cannot therefore, be struck down as ultra vires of the State Legislature. The Fifth contention of the learned Counsel for the petitioners therefore, also falls.

20. We now pass on to the sixth contention of the learned Counsel for the petitioners. It will be seen from the counter-affidavit filed on behalf of the State by the Secretary to the Government Home Department, that the detenus were initially detained under the Defence of India Rules, inter alia for reasons connected with the defence of India and the maintenance of public order. Now the expression 'Defence of India' in times of emergency appears to us to have a very wide connotation and is comprehensive enough to include within its sweep the security of the State as well. This is so because war or external aggression definitely affects and undermines the external and internal security of a State. Again the term 'public order' as held in : AIR1966Guj126 is of wide amplitude and comprehends within its ambit everything that may be connected with public safety and tranquillity. In this sense the security of State is closely allied to public order as well as any activity prejudicial to the security of the State is bound to jeopardise the public safety and tranquillity. In some decided cases it has also been held that the two objectives, maintenance of public order and the security of the State overlap to a certain extent. We are, therefore, unable to accede to the contention of the learned Counsel for the petitioners that the detenu having been previously detained for reasons connected with the defence of India and the maintenance of public order could not now be detained for reasons connected with the security of State and the maintenance of public order,

21. The next contention of the learned Counsel for the petitioners that since the activities referred to in the grounds of detention could be the subject matter of prosecution, the State should not have resorted to its extraordinary powers of detaining the detenus also does not appear to be sound. The fact that the Government can launch prosecution against a person for his unlawful or prejudicial activities, does not debar it from detaining a person if it is satisfied that the step will be more expedient and fruitful. As held in : AIR1966Guj126 , a habitual criminal is not exempt from the operation of the Act and the mere fact that he can be amenable to ordinary law does not preclude the exercise of power under Section 3 of the Preventive Detention Act. Again in : AIR1957Cal74 , it was held that there is no law which precludes the State from invoking the provisions of the Preventive Detention Act in respect of a matter as to which a criminal prosecution has been launched or can be launched. Further in AIR 1953 Pepsu 190 it was held that it cannot be stated as a rule of law that when a person is accused of an offence the only alternative is to prosecute him and there is no legal authority to detain him. Judicial decisions have even gone further and held that prejudicial activities can be the subject matter of parallel prosecution and detention. The right to prosecute a person under the ordinary criminal law and the right to detain him being mutually exclusive, the seventh contention of the learned Counsel for the petitioners must also be rejected.

22. The last contention of the learned Counsel for the petitioner is also without substance. Regarding the second part of his contention, it may be stated that there is nothing in law to debar an order of detention being served on the detenu in Jail, Reference in this connection may be made to:

Jagdev Singh v. State of Jammu and Kashmir : 1968CriLJ387 ; A.K. Gopalan v. Government of India : 1966CriLJ602 , Ujagar Singh v. State of Punjab : [1952]1SCR756 and Godavari Shamrao Parulekar v. State of Maharashtra : 1964CriLJ222 .

23. By these rulings it has now been conclusively settled that the mere fact that a person is under preventive detention as distinguished from punitive detention will not be a bar to the revocation of the previous order of detention and to the passing of a fresh order of detention although the person may not have been released in pursuance of the order of revocation. In all these rulings it has also been held that if the authority making an order is satisfied that the ground on which the detenu was originally ordered to be detained is still available and there is need for his detention, no mala fides can be attributed to the authority from the fact that the grounds alleged in the second detention are the same as those of the original detention. The rulings reported in : 1964CriLJ257 and : 1964CriLJ269 and relied on by the learned Counsel for the petitioners are not helpful to him as in these rulings the detenus were already under punitive detention in jail when orders for preventive detention were served on them. We, therefore, find no force in the 8th contention of the learned Counsel for the petitioners as well.

24. For these foregoing reasons, these applications fail and are hereby dismissed.


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