1. Mohd. Ayub Khan has moved this Court for a writ of Habeas Corpus. He has averred that he was arrested in April 1970, from the place of his residence without being served with any warrant of arrest or detention order. Nor was the petitioner served with any grounds of detention. The petitioner is languishing in jail for the last 2 years. The order of detention is illegal. He has, therefore, prayed that he be set at liberty.
2. The Assistant Advocate-General appearing on behalf of the respondent originally filed reply affidavit of Shri G. N. Naik, the present District Magistrate of Poonch. Thereafter he sought an opportunity to file the reply affidavit of the detaining authority file then District Magistrate Poonch namely Shri Chanan Shah Gupta. This he did on 10-11-1972. He also filed a supplementary affidavit of Daleep Singh Sub-Inspector of Police to the effect that the order of detention was executed by the said Daleep Singh and that the said order along with letter of the District Magistrate informing the petitioner that it was against public interest to disclose to him the grounds of detention, was read over to the detenu but by oversight the Sub-Inspector had omitted to make the necessary endorsement on the order.
3. I have heard Mr. S. A. Salaria and the Assistant Advocate General appearing for the respondent. The record relating to the detention of the petitioner has been made available.
4. From the record it appears that the petitioner has been detained because in the opinion of the District Magistrate, Poonch, the petitioner was acting in a manner prejudicial to the security of the State. The order of detention was passed on 23-7-71 and it was executed on 4-11-71 when the detenu was arrested by Daleep Singh the then Sub Inspector of Police Mendhar to whom the endorsement was made for the execution of the said order. The District Magistrate also vide his letter No. 4/PDA/71 dated 23-7-71 informed the detenu that it was against public interest to disclose to him the grounds of detention.
5. In this case the main contention of the learned Counsel for the petitioner is that the order of detention is illegal inasmuch as the order has not been made as required by the law relating to preventive detention. It is submitted that before an order of detention is made the detaining authority must be satisfied that the person sought to be detained is acting in a manner prejudicial to the security of the State and that it is necessary to detain him. These are mandatory requirements under Section 3 of the Jammu and Kashmir Preventive Detention Act of 1964 which gives jurisdiction to the detaining authority to pass an order of detention. In the instant case, it is submitted, the detaining authority has passed the order of detention wherein he has only recorded his satisfaction but has not recorded the other important requirement of law that it was necessary to detain the petitioner because of his prejudicial activities. My attention is invited to the two documents (counterpart of the original order of detention and its true copy attested by the District Magistrate Poonch). The words 'it is necessary to do so' do not appear in these documents. It is therefore submitted that the detention order is illegal.
6. The second argument of the learned Counsel for the petitioner is that the order of detention was not read over to the petitioner when he was arrested and that the order of the District Magistrate informing him that it was not in the public interest to disclose the grounds of detention to him was not served on him; nor was it read over to him, therefore also his detention is illegal.
7. It is further submitted that the petitioner could not controvert the averments made in the supplementary affidavit of Daleep Singh the then Sub-Inspector of Police Mendhar because the petitioner being in Jail could not file an affidavit by way of rejoinder to the supplementary affidavit.
8. The third argument is that tha District Magistrate directed the S. H. O. Mendhar to execute the detention order. The endorsement in the name of S. H. O. was illegal as the word 'S. H. O,' was unknown to the Criminal Procedure Code. Relying upon the observations made in 1972 J and K LR 312 : (1972 Cri LJ 1633) as also in AIR 1956 J and K 1 : (1956 Cri LJ 48) (FB) the learned Counsel has submitted that the order of detention has been executed by an unauthorised person in law and therefore the detention of the petitioner is illegal.
9. As against this the Assistant Advocate General appearing for the respondent has submitted that it was not correct to say that the words 'it is necessary to do so' do not appear in the warrant of detention. He has relied upon the original order of detention which was in his custody and which he produced before the court. He has, therefore, urged that this argument is not available to the petitioner. He has, further urged that even if these words were not in the order that would not make the order of detention illegal as it was not necessary to incorporate these words in the order of detention.
10. As regards the second argument of the petitioner that the order of District Magistrate informing the petitioner that it was against the public interest to disclose grounds to him it is submitted by Mr. A. D. Singh that the same is devoid of any merit as the detenue was infomed of this order by Mr. Daleep Singh who has filed his affidavit in this behalf. There was no counter-affidavit filed by the detenue.
11. Regarding the third contention raised by Mr. Salaria that the warrant was addressed to S. H. O. Mendhar and not to an officer by name the learned Assistant Advocate General has submitted that the endorsement has been made by name to Mr. Daleep Singh I/C Police Station Mendhar.
12. I have given my best consideration to the contentions raised before me.
13. I find no force in the argument of the learned Counsel for the petitioner that the endorsement has been made in the name of S. H. O. Mendhar. The endorsement clearly mentions the name of Daleep Singh (S. H. O.) Police Station Mendhar. Were the order of detention forwarded to S. H. O. Police Station Mendhar for execution and there was no name mentioned of the officer who had to execute the order there might have been some force in the argument of the learned Counsel for the petitioner. But the very order shows that it is addressed to Daleep Singh by name. Therefore I find no defect in the manner of execution of the order.
14. As regards the argument that the detenu was not apprised of the order No. 4/PDA/71 dated 23-7-71 relating to the reason assigned for non-disclosure of grounds to the detenu I find that the same is devoid of force inasmuch as Daleep Singh the then Sub-Inspector of Police has in his affidavit sworn to the fact that he did inform the detenu of this order, but it was only through oversight that he had omitted to make an endorsement about the service of this order on the petitioner or to write the date of service of the said order on the petitioner. In the absence of any counter-affidavit by the petitioner it cannot be said that the averment made in the supplementary affidavit of Daleep Singh is incorrect. In this situation it will be assumed that the order was communicated to the petitioner.
15. Now in so far as the question relating to the legality of the impugned order is concerned this has got two aspects viz. the legal and the factual. The legal aspect of the question is; is it incumbent upon the detaining authority to make an express mention in the order of detention of the requirement of the section that it is necessary to detain a person with a view to prevent him from acting in a manner prejudicial to the security of the state or public order as the case may be, and does an omission to record these words in the order make the order of detention illegal? In my judgment it is most necessary that these words must appear in the order of detention. It would be only then that the order of detention can be said to conform to the requirement of law. Not onlv must the detaining authority be satisfied that the person sought to be proceeded against is acting in subversive activities as envisaged by Section 3 of the Preventive Detention Act but also he must say in the order that it is necessary to make an order of detention in terms of Section 3 of the said Act. Unless that is there it cannot to my mind be said to be a valid order. In the order of detention it should be stated by the detaining authority that it was satisfied that it was necessary to make an order of detention with a view to prevent the person concerned from acting in a manner which is a prejudicial act as detailed in Section 1 (3) of the Preventive Detention Act. Such a statement in the order is all the more necessary to be made when the court cannot go into the question of satisfaction of the detaining authority as that satisfaction is only subjective and not objective. However, that satisfaction of the subjective state of mind can only be known by what is stated in the order. It has often been observed that the law relating to the preventive detention being a piece of harsh legislation which affects the liberties of citizens, it is to be construed strictly and any hairbreadth deviation from the rule will give an opportunity to courts to hold the detention order illegal and to quash the same.
In : 1959CriLJ1501 it has been observed:-
This court, and naturally, the High Courts, have treated the recitals in the orders of detention, with particular reference to the several clauses and sub-clauses of Section 3 (1) (a) and (b) of the Act, as stating the object to be achieved in making the order of detention. xx xx xx
XX XX XXSection 3 of the Act requires the authority making an order of detention, to state the facts of its satisfaction that it is necessary to make the order of detention of a particular person, with a view to preventing him from acting in a manner prejudicial to one or more of objects contained in clauses and sub-clauses of Section 3(1)(a) and (b) of the Act.
I, therefore, hold that in order to make the order of detention legal and conform it with the requirement of law the words 'it is necessary so to do' must appear in the order.
16. The second factual aspect of the question is whether these words were present in the impugned order? There are three documents before me, one is the original order of detention which was produced by the respondent, the other two also relate to the detention order of the petitioner. One document purports to be the counterpart of the original order and bears the seal of the District Magistrate and is also signed by him. The other is the true copy of the original attested by the District Magistrate, Poonch. It is only in the original order that the words 'it is necessary so to do' appear, but in the counterpart and in the attested copy these words do not appear. No plausible explanation has been furnished as to how these words appear in the original but are missing from the counterpart and in the attested copy. This important discrepancy in the documents raises a great doubt with regard to the veracity of the contentious part of the order. No attempt has been made by the respondent to remove this doubt from the mind of the court. Counsel for the petitioner has argued that the words 'it is necessary so to do' were inserted in the original order afterwards and did not appear at the time, when the order was drafted. Had these words been present at the time the order was made then there was no reason why these words should not have appeared in the counterpart and in the attested copy. Be as it may, it cannot be gainsaid that the contention raised by the petitioner is not altogether unfounded. No affidavit has been filed to clear this contradiction and remove this doubt. The order of detention appears to be of doubtful veracity. In such circumstances benefit of doubt must go to the petitioner.
17. The result is that the writ petition is allowed and it is ordered that the petitioner be released from detention forthwith if not required in any other case.