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Sh. Ghulam Ahmed and anr. Vs. State of Jammu and Kashmir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1969CriLJ1136
AppellantSh. Ghulam Ahmed and anr.
RespondentState of Jammu and Kashmir
Excerpt:
- .....states that the petitioners in both the cases were released from detention on 12th june 1967 and a fresh government order under the preventive detention act was passed on the same day but was served on the petitioners on 13th june 1967.in my opinion even this matter whether a fresh detention order was served on the petitioners while they were in jail or had been released from the custody is of no consequence. there are numerous authorities of the supreme court in this connection. they may be referred to as : 1964crilj222 : 1966crilj305 : 1967crilj279 and lastly : 1968crilj387 . i need not burden the record by reproducing the observations of their lordships in different cases but as all these authorities have been discussed in : 1967crilj279 a constitution bench of the supreme court has.....
Judgment:
ORDER

J.N. Bhat, J.

1. This judgment will dispose of two writ petitions Nos. 225 and 226 of 1963.

2. The petitioner Ghulam Ahmed was arrested on 10-3-1966 and was kept in different places lastly in Central Jail, Jammu. He filed a writ petition No. 79 in the Supreme Court, and the Supreme Court by its order dated 9-6-1967 ordered the release of the petitioner. The petitioner was taken out from the Central Jail on 12th June, 1967, and re-arrested on the spot on the same day. An order No. ISD-231 of 1967 dated 12-6-1967 was served upon him under the Preventive Detention Act, 1964, Section 3(1)(a)(i). The petitioner completed his six months on 12-12-1967. After that no continuation order was served upon him. Therefore the petitioner prayed for being released.

3. The petitioner Ghulam Sarwar states that he was whisked away by police without any warrant of arrest on 8-11-1965. An order for his detention under D. I. R. was issued by the Government on 3-2-1966. The petitioner challenged his detention before the Supreme Court by means of writ petition No. 135 of 1966. His petition was dismissed on 19-7-1966. He filed another writ petition in 1967 and he was ordered to be released on 9-6-1967. He was taken out of the jail on 12-6-1967 and re-arrested on spot and an order No. ISD-230 of 1967 dated 12-6-1967 was served upon him and he was detained on 12-6-1967. The petitioner completed six months of his detention under P. D. A. on 12-12-1967 and no fresh order of continuation of his detention was served upon him.

4. Both these petitions are contested by the Government. It is admitted by the State that these two petitioners were released on 12-6-1967 but the case of the Government is that they were re-arrested on 13-6-1967. In both cases it is stated that the activities of the petitioners were prejudicial to the security of the State and maintenance of public order. There was no change of mind in the petitioners and the Government was satisfied that if the petitioners were not detained under the Preventive Detention Act, their activities would cause prejudice to the security of the State and maintenance of public order. It is therefore averred in the affidavit of the Home Secretary that after the order of detention was served on the petitioners on 13-6-1967 after their re-arrest the grounds of their detention were conveyed to the petitioners under Section 3(1) of the Preventive Detention Act.

The disclosure of the facts which led to their detention was considered to be against the public interest and was withheld. These grounds were served on the petitioners within the statutory period of 5 days. Under Section 10 of the Preventive Detention Act, the cases of the petitioners were placed before the Advisory Board on 10-7-1967 along with the grounds of the detention and the entire material relevant to the case. The Board considered the entire material and the representation made by the petitioners and forwarded their opinion to the Government. The Board was of the opinion that there was sufficient cause for the detention of the petitioners. The Government confirmed this detention order and directed that the petitioners be detained for one year vide its order dated 1-9-1967. The same affidavit has been sworn in both the cases.

5. I have heard the learned Counsel for the petitioner Ghulam Ahmed. As the facts are similar, or almost the same, the arguments advanced by the learned Counsel for 'the petitioner Ghulam Ahmed should be treated as arguments in favour of the other petitioner Ghulam Sarwar.

6. The argument of the learned Counsel for the petitioner is that as a matter of fact, the petitioners were directed to be released by the Supreme Court on 9-6-1967 by Bhargava, J., who was then the vacation Judge, They were not actually released at all but a fresh order of detention was served on them on 12-6-1967 the date on which they were supposed to be released in pursuance of the order of the Supreme Court. The State on the other hand states that the petitioners in both the cases were released from detention on 12th June 1967 and a fresh Government Order under the Preventive Detention Act was passed on the same day but was served on the petitioners on 13th June 1967.

In my opinion even this matter whether a fresh detention order was served on the petitioners while they were in jail or had been released from the custody is of no consequence. There are numerous authorities of the Supreme Court in this connection. They may be referred to as : 1964CriLJ222 : 1966CriLJ305 : 1967CriLJ279 and lastly : 1968CriLJ387 . I need not burden the record by reproducing the observations of their Lordships in different cases but as all these authorities have been discussed in : 1967CriLJ279 a constitution Bench of the Supreme Court has held:--

In the case of a detention order which was served on the detent while he was already in jail custody, the validity of the order of detention would not necessarily depend upon whether the order was served on him, when he was or was not in jail custody. All the surrounding circumstances have to be borne in mind for deciding whether or not the order is valid. The essential thing is that the legislature has left it to the detaining authority to be satisfied about the necessity of detention and in the absence of mala fides on the part of the authority, the Court cannot go into the question on the propriety of subjective satisfaction of the detaining authority. Where the initial order of detention is not challenged on the ground of mala fides its supersession by another order of detention passed on the same ground as the one earlier made cannot be said to be tainted by mala fides because, when it was made the person was already in jail custody.

In the latest Supreme Court authority reported as AIR 1968 SC 327 which was the judgment again given by five learned Judges of the Court it was held that:Rules 30 and 30A of the D. I. R, was designed to protect personal liberty of citizen, is a mandatory provision. If the review of the original detention order was not in accordance with the Rule 30A (9), the original order of detention although good, falls because it was not reviewed and this order becomes illegal after six months but a fresh order of detention can be passed on the same facts provided it is not mala fide.

7. That clinches the whole matter. There is no imputation of mala fide in the petitions made by the petitioners.

8. The learned Counsel for the petitioner Ghulam Ahmed however relied on the authority reported as AIR 1967 SC 1797 by Bhargava Vacation Judge, which was the case relating to the same petitioner. In that authority his Lordship held that the order of review was bad as it was passed without giving an opportunity to the detent of tendering explanation or other materials. The detention of the detent became illegal after six months. The detent must be released. The State Government passed two orders, one canceling the original order of detention and a fresh order of detention under Rule 30(1)(b). It was held by his Lordship that the subsequent new order of detention under Rule 30(1)(b) amounted to subterfuge adopted for getting round Rule 30A (9) and the procedure adopted by the State Government resulted in prejudice to detent. Therefore his Lordship struck down that order. But this authority has not been held to be good law by five learned Judges of the Supreme Court in a case reported as : 1968CriLJ387 which again is a case from the State of Jammu and Kashmir. They have discussed Bhargava J.'s judgment already referred to namely AIR 1967 SC 1797 and made the following observations:--

This brings us to the consideration of the judgment of our brother Bhargava, J., in Avtar Singh's case AIR 1967 SC 1797 to which we have already referred. Our learned brother held that where the original order of detention, as in these cases, was a good order for the first period of six months, it would not be open to the State Government to pass a fresh order of detention on the same facts after canceling the order on the expiry of 6 months, for that would be going round the provisions of Rule 30-A and that the only way in which detention could be continued after the first period of 6 months, where a good order was originally passed was to make review in a proper manner as indicated in the case of Lakhanpal W. P. No. 258/66, D/- 7-3-1967 : : [1967]3SCR114 . Our learned brother seems to have held that if a review was not made in a proper manner as indicated in Lakhanpal's case W. P. No. 258/66, D/- 7-3-1967 : : [1967]3SCR114 the Government would be completely powerless and could not detain the persons concerned by a fresh order in effect therefore our learned brother held that if a mistake is made by Government in the matter of review it could not correct it and the detent must go free.

Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every 6 months and thus continues the detention of a detent, circumventing the provisions of Rule 30A for review, which as interpreted by this Court in Lakhanpal's case W. P. No. 258/66, D/- 7-3-1967 : AIR 1967 SC 1507 give some protection to the citizens of this country it would certainly be acting mala fide. Such a fresh order would be liable to be struck down not on the ground that Government has no power to pass it but on the ground that it is mala fide exercise of the power. But if the Government has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect. In such a case it cannot be said that the fresh order is a mala fide order to circumvent Rule 30A

Further on they say in para 8 of the judgment that:--

It is true that after Lakhanpal's case W. P. No. 258/66, D/- 7-3-1967 : : [1967]3SCR114 in which the review was made become defective and therefore the continuance of detention became illegal. Even so, if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpal's case, W. P. No. 258/66. D/- 7-3-1967 : : [1967]3SCR114 it would in our view be not right to say that the Government cannot do so because that would be circumventing Rule 30A. We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules. The Courts have always the power to strike down an order passed in mala fide exercise of power and we agree with Bhargava, J., to this extent that if the Government instead of following the procedure under Rule 30-A as now laid down in Lakhanpal's case, W. P. No. 258/66 D/- 7-3-1967 : : [1967]3SCR114 wants to circumvent that provision by passing fresh orders of detention on the same facts every 6 months it will be acting mala fide and the courts will have the power to strike down such mala fide exercise of power. But in cases, like the present, where the continuance became defective after the judgment of this Court in Lakhanpal's case, W. P. No. 258/66, D/- 7-3-1967 : : [1967]3SCR114 we can see no reason to deny power to Government, to rectify the defect of passing a fresh order of detention. Such an order in such circumstances cannot be called mala fide and if the Government has the power to pass it, which it undoubtedly has for there is no bar to a fresh order under the Act, or the Rules there is no reason why such a power should be-denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made. We are therefore of the opinion-that the view taken in Avtar Singh's case, W. Ps. Nos. 68, 70, 79, 89 and 92 of 07, D/- 9-6-1967 : : [1967]3SCR114 in so far as it says that no fresh order can be passed even to correct any defect in an order continuing detention under Rule 30-A (9) is not correct.

Therefore this argument of the learned' Counsel for the petitioners is not of an consequence.

9. The learned Counsel further argued' that under the Jammu and Kashmir Preventive Detention Act, 1964, Section 11 it was obligatory for the Advisory Board to intimate to the petitioners if they desired to be heard in person. This section reads as follows:--

(1) The Advisory Board shall after considering the material before it, and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government or from the person; concerned and if in any particular case if considers it essential so to do or if the person concerned desired to be heard, after hearing him in person, submit its report to the Government within 10 weeks from the date of detention.

10. It is nowhere in the language of' this section that it is obligatory for the Board tO inform the petitioner in order to know whether he desires to be heard in person. This is not indicated in the language of the section itself because it says '...and in any particular case it considers it essential so to do or if the person concerned desired to be heard... which means that in every case it is not necessary for them to hear the. detent but in case a detent wishes to be heard in person, they are bound to hear him. In this case there is no such averment that the petitioners desired or intimated to the Board that they should be personally heard. Therefore if the Board did not hear them before sending its recommendation to the Government, there was no illegality committed by the Board.

11. The learned Counsel for the petitioners then relied on an authority : 1966CriLJ305 and argued that as the petitioner Ghulam Ahmed had been arrested in March 1966 he had been in custody till 12-64967, when he was released, the fresh order of his detention under the Preventive Detention Act was bad because from March 1966 there was no evidence with the Government that if kept at large this petitioner would indulge in activities detrimental to the public safety or maintenance of Public Order.

In that authority their Lordships have held that:--.Detention order is generally passed in the light of the evidence about the past activities of the person concerned. These past activities should, however, ordinarily be proximate in point of time to justify the detention order....

The learned Counsel strongly relied on this authority but the authority itself lays down that:--

In the present cases the petitioners had been in jail for only 3 months before the order of detention was passed against them. It could not be said that the conduct of the petitioners before this period of three months was not proximate enough to justify an order of detention based on that conduct. The fact that it was originally intended to prose-. cute them under Section 3 of the Official Secrets Act and when the authorities were unable to get sufficient evidence to obtain a conviction they decided to drop the criminal proceedings and to order their detention by itself was not sufficient to lead to the inference that the action of the detaining authority was mala fide.

Here in this case the Government has sworn an affidavit through the Home Secretary that the activities of the petitioners were such as would lead to a threat to public safety and maintenance of public order. It has been again held in : 1964CriLJ257 that:--

the satisfaction of the detaining authority to which Section 3(1)(a) refers is his subjective satisfaction and so is not justiciable. Therefore it would not be open to the detent to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would not be open, for instance to the detent to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. This is the effect of the true legal position in regard to the satisfaction contemplated by Section 3(1)(a).

Therefore this Court cannot enter into the discussion whether the grounds of detention supplied to the detent are correct and sufficient for his detention.

12. From the discussion of the above there does not appear to be any merit in these petitions, which are therefore dismissed.


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