PETITIONER:
VIJAY KUMAR
Vs.
RESPONDENT:
STATE OF J & K & OTHERS
DATE OF JUDGMENT17/03/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ISLAM, BAHARUL (J)
CITATION:
1982 AIR 1023 1982 SCR (3) 522
1982 SCC (2) 43 1982 SCALE (1)240
CITATOR INFO :
F 1982 SC1539 (7)
R 1982 SC1543 (13)
R 1982 SC1548 (5)
RF 1987 SC2098 (7)
R 1989 SC1403 (8,10,11)
R 1989 SC1861 (18)
R 1989 SC2027 (18)
RF 1990 SC1196 (10)
RF 1990 SC1202 (6)
ACT:
Jammu & Kashmir Public Safety Act, 1978-Section 13(1)-
Detaining authority must give the detenu earliest
opportunity of making representation- Forwarding detenu's
representation to Government-Jail authorities-Mere channel
of communication-Delay in transit-No excuse for delay in
dealing with representation-Unexplained delay-Invalidates
order of detention.
HEADNOTE:
The petitioner has arrested on June 26, 1981 under the
Enemy Agent ordinance. The Chief Judicial Magistrate
rejected his application for bail on the ground that he had
no jurisdiction to try him. The Addl. Sessions Judge
rejected his bail application on the ground that as ha was
by then ordered to be detained under the J & K Public Safety
Act the bail application has become infructuous.
The detention order dated July 11, 1981 was served on
the detenue in jail on July 15, 1981. His representation
dated July 29, 1 981 was forwarded to the State Government
on July 29, 1981 and simultaneously a wireless message was
sent on the same day. The representation was received by the
Government on August 12, 1981. After investigations the file
was put up to the Chief Minister on August 28, 1981 for
approval. The Chief Minister rejected the representation on
August 31, 1981 which was communicated to the petitioner in
jail on September 1, ]981. The detenu's case was referred to
the Advisory Board on August 3, 1981. Its report was
submitted on September 4, 1981.
In this petition under art. 32 of the Constitution it
was contended before this Court on behalf of the petitioner
that as section 13 (1) of the Jammu & Kashmir Public Safety
Act 1978 imposes an obligation on the detaining authority to
give the detenu the earliest opportunity of making a
representation against the detention order the long
unexplained delay in this case had invalidated the order of
detention.
Allowing the petition,
^
HELD: The petitioner's representation had not been
dealt with as expeditiously as possible. There was therefore
contravention of section 13 of the Act which invalidated the
detention. [532 D]
Preventive detention, unlike punitive detention, does
not afford an opportunity to the detenu to explain his side
of the matter before he is deprived
523
Of his liberty and therefore the statute makes it obligatory
on the authorities to A afford him the earliest opportunity
to represent his case and a corresponding obligation on the
authority to consider the representation. The word
"earliest" which qualifies the term "opportunity" must
equally qualify the corresponding obligation of the State to
deal with the representation if and when made as
expeditiously as possible. [529 H; 530 A-B]
The jail authorities who are merely a communicating
channel have to move with promptitude so that sufficient
guarantee of affording earliest opportunity of making the
representation and the same reaching the Government is
translated into action. The corresponding obligation of the
State to consider the representation cannot be whittled down
by merely saying that time was lost in transit. The State
Government must gear up its own machinery to see that in
these cases the representation reaches the Government as
early as possible and is considered by the authorities with
equal promptitude. Any unexplained delay would be denial of
the statutory protection given to the detenu. [530 D-G]
In the instant case there were two time lags: the
representation handed in to the Jail Superintendent on July
29, 1981 reached the Government on August 12, 1981 after a
time lag of fourteen days and the representation was
disposed of on August 31, 1981 after a time lag of nineteen
days and the delay has not been explained on any convincing
ground. [531 F, 532 B]
Khudi Ram Das v. State of West Bengal, [1975] 2 SCC 81,
referred to.
Preventive detention is resorted to, to thwart future
action. If the detenu is already in jail charged with a
serious offence, he is thereby prevented from acting in a
manner prejudicial to the security of the State. Where there
is need to order preventive detention of a person already in
jail the detaining authority must disclose awareness of the
fact that the person against whom an order of preventive
detention is being made is to the knowledge of the authority
already in jail and yet for compelling reasons a preventive
detention order needs to be made. [528 F-G]
In the instant case there is nothing to indicate
awareness of the detaining authority that the detenu was
already in jail for more than 16 days and Yet the impugned
order was made. This clearly exhibits non-application of
mind and would result in invalidation of the order. But the
Court did not base its order on this ground. [528 G-H]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
9516 of 1981.
(Under article 32 of the Constitution)
Bhim Singh, P.D. Sharma & Subash Sharma for the
Petitioner.
M.N. Phadke and Altaf Ahmed for the Respondents,
524
The Judgment of the Court was delivered by
DESAI, J. On February 9, 1982 we made an order quashing
the detention order dated July 11, 1981 made by the District
Magistrate, Jammu in exercise of the power conferred by
Section 8 of The Jammu and Kashmir Public Safety Act, 1978
(‘Act’ for short) and we announced that the reasons would
follow. Here are the reasons.
The detenu Vijay Kumar was arrested on June 26, 1981. A
petition was moved on his behalf before the Chief Judicial
Magistrate Jammu praying for releasing the detenu, on bail.
This petition for bail appears to have come up before the
learned Magistrate on July 4, 1981 when the following order
was made:
“I have heard the advocate for the applicant and
perused the C.D. File. Put up for orders on 6.7.81.”
When the matter again came up on July 6, 1981, the
learned Magistrate made the following order:
“Although there was nothing in the C.D. File about
his (Petitioner) involvement in E.A.O. (Enemy Agents
ordinance) on 4.7.81, but today a detailed report has
been presented in which one of the offences of which he
is charged is u/s 3, E.A.O. which this Court is not
competent to try. Hence this application is returned to
the applicant for presentation to the proper court
alongwith report “
The detenu thereupon moved an application for releasing
him on bail before the learned Additional Sessions Judge,
Jammu, who, we are informed, was competent to try the
accused charged with an offence under Enemy Agents
ordinance. His petition for bail came up before the learned
Additional Sessions Judge on July 11, 1981 when the
following order was made:
“This application pertains to Vijay Kumar accused
who is involved for an offence under the Enemy Agents
ordinance which is being investigated by the Counter
Intelligence Police, Jammu. The learned Chief
Prosecuting officer and the learned counsel for the
accused have been heard.
525
During the course of arguments an order has been A
shown to me by the police that said Vijay Kumar accused
has now been ordered to be detained under the Public
Safety Act.
In view of this order, this bail application has
become infructuous which is disposed of accordingly.”
The detenu was served with the detention order dated
July 11, 1981 on the same day in jail because he was already
in jail from June 25, 1981. The grounds for detention were
served on him on July 15, 1981. The detenu submitted his
representation dated July 29, 1981 addressed to the
Secretary the Government Home Department to the
Superintendent, Central Jail, Jammu where the detenu was
detained. One Shri K.D. Sharma, Incharge Superintendent,
Central Jail Jammu has stated in his affidavit dated
February 6, 1982 that the representation of the detenu dated
July 29, 1981 was forwarded to the Government at Srinagar
vide office letter No. 2595 dated July 29, 1981 and
simultaneously a wireless message No. 2596 on the same day
was also sent to the Government intimating that the
representation of the detenu had been forwarded to the
Government for appropriate action. Mr. K S. Salathia, Deputy
Secretary to the Government of Jammu and Kashmir, Home
Department, Jammu, in his affidavit dated February 9, 1982
has stated that the 1 representation of the detenu was
received from the Superintendent, Central Jail, Jammu in the
office of the Home Department at Srinagar on August 12,
1981. The department also received the comments of S.P.,
C.I.D. Counter Intelligence, Jammu and thereafter the case
was processed on August 24, 1981 in the office of the Home
Department at Srinagar and the file was placed before the
Home Secretary on August 25, 1981, who recommended the same
for approval on August 28,1981 to the Chief Minister (Home)
From the same affidavit, it further transpires that the
Chief Minister rejected the representation on August 31,
1981 and the same was communicated to the detenu on
September 1, 1981. In the meantime, the case of the detenu
was referred to the Advisory Board on August 3, 1981. The
Advisory Board submitted its report to the Government on
September 4, 1981.
one Rattanlal, the brother of the detenu moved Petition
No. 31 of 1981 for writ of Habeas Corpus in the High Court
of Jammu and Kashmir at Jammu. The petition came up for
hearing before
526
the learned Single Judge, who by his judgment dated December
7, 1981 rejected the same. Thereafter the detenu by the
present writ petition, moved this Court under Article 32 of
the Constitution for a writ of Habeas Corpus.
Section 8 of the Act prescribes grounds for detention,
one such ground being to prevent any person from ‘acting in
any manner prejudicial to the security of the State. The
impugned order of detention recites that the detenu is
detained with a view to preventing him from ‘acting in any
manner prejudicial to the security of the State.’ The
expression ‘acting in any manner prejudicial to the security
of the State’ has been defined in Section 8 (3) of the Act
to mean making preparations for using, or attempting to use,
or using or instigating, inciting, provoking or otherwise
abetting the use offence, to overthrew or overawe the
Government established by the law in the State. The detenu
contended before the High Court that accepting all the
activities attributed to the detenu in the grounds of
detention at their face value. the alleged prejudicial
activity would not fall within the ambit of the expression
‘acting in any manner prejudicial to the security of the
State.’ The definition of the expression as here in before
extracted indicates that the person accused of ‘acting in
any manner prejudicial to the security of the State’ must be
shown to be making preparations for using, or attempting to
use, or using or instigating, inciting or provoking or
otherwise abetting the use of force, and the intention or
motive for the activity must be to overthrow or overawe the
Government established by law in the State. The learned
judge of the High Court following an earlier Division Bench
judgment of the same High Court in Kharotilal v. State,(1)
negatived this contention of serving that where the
Government accusation against the detenu is that he had been
indulging in supplying information for Pakistan Army
Intelligence and was passing on vital information pertaining
to the Army department etc. to that Agency, such activities
were likely to assist Pakistan in any armed aggression
against the State and were a threat to the security of the
State. This view needs examination but as the argument was
not pressed before us, we refrain from examining the same.
Number of contentions were advanced at the hearing of
this petition but we propose to deal with only two of them
which in our
527
Opinion go to the root of the matter and which, when
accepted, in our opinion, would result in invalidation of
the order.
The first contention is that the order of the District
Magistrate suffers from non-application of mind inasmuch as
the date on which he passed the impugned order of detention
dated July li, 1981, the detenu was long before arrested and
locked up in Jail on the allegation that he was suspected to
have committed some offence under the Enemy Agents ordinance
8 of Samvat Year 2005, and, therefore there was no present
apprehension that the detenu, if not detained, was likely to
act in any manner prejudicial to the security of the State.
The District Magistrate passed the impugned order of
detention on being satisfied that with a view lo preventing
the detenu from acting in a manner prejudicial to the
security of the State it was necessary to detain him. The
order ex facie does not show that the detaining authority
was aware that the detenu was already arrested and kept in
jail. If the detaining authority was conscious of the fact
that the detenu was already arrested and confined in jail,
the order ex facie would have shown that even though the
detenu was in jail, with a view to preventing him from
acting in a manner prejudicial to the security of the State
it was necessary to detain him. There is a foot note in the
order that the order was forwarded to the S P., C.I D.
Counter Intelligence, Jammu for execution of the order under
section 3 of the Act. The further direction was that notice
of the order shall be given to Vijay Kumar s/o Anant Ram,
r/o H. No. 609, Peer Mitha, Jammu, by reading over and
explaining the same to him in language he understands. The
detention order does not give the slightest indication that
the detaining authority was aware that the detenu was
already in jail yet on the material placed before him he was
satisfied that a detention order ought to be made. There is
nothing in the order to show that to the knowledge of the
detaining authority the detenu was already in jail for a
period of more than lo days before the date on which he
passed the order and that such detention in the opinion of
the detaining authority was not sufficient to prevent the
detenu from acting in a manner prejudicial to the security
of the State, and therefore power under section 8 of the Act
is required to be . exercised.
The detenu in para 3 of his petition before this Court
has specifically averred that he was arrested on June 26
1981, the correct
528
date being June 25, 1981, under a false and fabricated
charge. Shri K.S. Salathia, Deputy Secretary to Government
of Jammu & Kashmir, Home Department, who has filed the
counter affidavit has with reference to the averments made
in para 3 of the petition made a very very ambiguous
statement that for the purpose of J and K Public Safety Act
the petitioner was arrested on July 11, 1981, pursuant to
the detention order. It is no where suggested that the
detaining authority was aware of the fact that the detenu
was already in jail and that keeping in view the fact the
detenu was already locked up in jail yet it was considered
necessary for preventing him from acting in a manner
prejudicial to the security of the State to pass the
detention order. lt may further be pointed out that Shri A.
Sahasranaman, the District Magistrate of Jammu who has made
the impugned detention order, filed an affidavit on February
7, 1982. Of course, in fairness to him it must be stated
that this affidavit was for the limited purpose of pointing
out as to how he dealt with the case of Hans Raj, another
detenu whose detention was quashed by this Court subsequent
to the order of this Court. It may be noticed in passing
that Hans Raj and the detenu were involved jointly in the
activity, which led to the detention of the detenu. Even
though this affidavit was filed for the limited purpose, it
came on record after the case was taken up for hearing by
this Court and the affidavit at least does not throw any
light on the vexed question whether the detaining authority
was aware of the fact that the detenu on being suspected of
having committed a serious offence, was already in jail for
a period of more than a fortnight before the date of the
impugned detention order. Preventive detention is resorted
to, to thwart future action. If the detenu is already in
jail charged with a serious offence, he is thereby prevented
from acting in a manner prejudicial to the security of the
State. May be, in a given case there yet may be the need to
order preventive detention of a person already in jail. But
in such a situation the detaining authority must disclose
awareness of the fact that the person against whom an or-der
of preventive detention is being made is to the knowledge of
the authority already in jail and yet for compelling reasons
a preventive detention order needs to be made. There is
nothing to indicate the awareness of the detaining authority
that detenu was already in jail and yet the impugned order
is required to be made. This, in our opinion, clearly
exhibits non-application of mind and would result in
invalidation of the order. We, however, do not base our
order on this ground.
529
The second contention which in our opinion goes to the
root A of the matter is that there has been a violation of
section 13 of the Act. Section 13 provides as under:
“13. Grounds of order of detention to be disclosed
to persons affected by the order:-(I) When a person is
detained in pursuance of a detention order, the
authority making the order shall, as soon as may be,
but not later than five days from the date of
detention, communicate to him the grounds on which the
order has been made, and shall afford him the earliest
opportunity of making a representation against the
order to the Government.”
x x x
The provision contained in section 13 (1) is on par
with the constitutional protection conferred by Article 22
(5) of the Constitution of India. The contention is that the
obligation on the detaining authority to afford to the
detenu the earliest opportunity of making representation
against the order of detention, in order not to render it
illusory simultaneously obliges the authority to whom the
representation is made to consider the same expeditiously.
Submission is that a statutory right conferred on the detenu
enabling him to make a representation which of necessity
must be giving an opportunity to point out to the Government
as to why the detention order was not justified and that it
must be revoked and the personal liberty deprived under the
detention order must be restored, is to convince the
Government to take into consideration the facts and
contentions set out in the representation, which must imply
that the Government must consider the same. The earliest
opportunity to be afforded for making representation inheres
the corresponding duty of the Government to consider the
representation so received expeditiously. The reason behind
enacting this provision is manifest. When power to detain
without trial is exercised, the authority exercising the
power must afford an opportunity to the detenu to convince
the Government/detaining authority that the power was not
justifiably exercised or no occasion arose for exercise of
the power. In a punitive detention which is the end product
of a trial in which the convict participates and has full
opportunity to present his side of the case while preventive
detention ordinarily described as jurisdiction based on
suspicion does not afford any opportunity to the detenu to
explain his side of the matter before
530
he is deprived of the liberty and; therefore, so soon after
the detenu is deprived of his personal liberty the statute
makes it obligatory on the authorities concerned to afford
him an earliest opportunity to represent his side of the
case and which inheres the corresponding obligation on the
authority to consider the same. The word ‘earliest’ which
qualifies the opportunity must equally qualify the
corresponding obligation of the State to deal with the
representation if and when made, as expeditiously as
possible. The opportunity contemplated by the section is the
opportunity to make a representation against the detention
order to the Government and therefore ex hypothese soon
after the person is deprived of his personal liberty he must
be afforded the earliest opportunity to make a
representation. The representation is to be made tc. the
Government. Therefore the detenu who has already been served
with the detention order and thus deprived of his liberty
would ordinarily be in a position to send his representation
through the jail authorities. The jail authority is merely a
communicating channel because the representation has to
reach the Government which enjoys the power of revoking the
detention order. The intermediary authorities who are
communicating authorities have also to move with an amount
of promptitude so that the statutory guarantee of affording
earliest opportunity of making the representation and the
same reaching the Government is translated into action. The
corresponding obligation of the State to consider the
representation cannot be whittled down by merely saying that
much time was lost in the transit. If the Government enacts
a law like the present Act empowering certain authorities to
make the detention order and also simultaneously makes a
statutory provision of affording the earliest opportunity to
the detenu to make his representation against his detention,
to the Government and not the detaining authority, of
necessity the State Government must gear up its own
machinery to see that in these cases the representation
reaches the Government as quickly as possible and it is
considered by the authorities with equal promptitude. Any
slackness in this behalf not properly explained would be
denial of the protection conferred by the statute and would
result in invalidation of the order.
Reverting to the facts of this case, the detenu who in
jail from June 25, 1981, was served with a detention order
on July 11, 1981, the very day on which the detention order
was made. The grounds of detention were served upon him on
July 15, 1981. Admittedly the detenu submitted his
representation to the Superintendent of Jail on July 29,
1981. One K.D. Sharma, Medical officer, Central Jail,
531
Jammu, Incharge Central Jail, Jammu who has filed his
affidavit dated February 6, 1982, has admitted that the
detenu submitted his representation addressed to the
Secretary to the Government, Home Department, on July 29,
1981. He proceeds to assert that the said representation in
original was forwarded by post to the Government in Srinagar
vide his office No. 2595 dated July 29, 1981. He further
adds that a wireless message No. 2596 dated July 29, 1981,
was also sent to the Government to intimate that the
representation of the detenu had been forwarded to the
Government for appropriate action. Postal communication from
Jammu to Srinagar hardly takes two days unless it is pointed
out that there was some break down of communication. Nothing
to that effect was brought to our notice. Now, Shri Salathia
has stated in his counter affidavit that as no
representation was received a wireless message was sent on
August 6, 1981, making reference to the wireless
communication from the Superintendent of Jail that the
representation referred to in the wireless message of the
Jail Superintendent has still not been received at Srinagar.
He requested the Superintendent to send a duplicate copy of
the same by air consignment, and gave a further direction
that in future all such communications should be sent
through air consignment. Be that as it may, he says that the
representation was received in the office on August 12,
1981. The comments from S.P., C.I.D., Counter Intelligence
were called for on August 14, 1981. He does not state the
date on which they were received but he says that the case
was examined and processed on August 24, 1981 in the office
and the file was placed before the Home Secretary on August
25, 1981, who recommended the same for approval on August
28, 1981, and the Chief Minister (Home) rejected the
representation on August 31, 1981, and the fact of rejection
of the representation was communicated to the detenu on
September 1, 1981. There are two time lags which may be
noticed. Representation admittedly handed in the
Superintendent of Jail on July 29, 1981 to at Jammu reached
Srinagar, the summer capital of the State on August 12,
1981, which shows a time lag of 14 days. The second lime lag
is, from our point of view, more glaring. Even though the
concerned office was made aware of the fact by the wireless
message of the Superintendent of Jail, Jammu, dated July 29,
1981, that a representation of the detenu has been sent by
post, the . first query about its non-receipt came as per
the wireless message dated August 6, 1981. That can be
overlooked, but it has one important message. The concerned
office was aware of the fact that a representation has
532
already been made and a duplicate was sent for. With the
background of this knowledge trace the movement of the
representation from the date of its admitted receipt being
August 12, 1981. If the representation was received on
August 12, 1981, and the same office disposed it of on
August 31, 1981, there has been a time lag of 19 days and
the explanation in that behalf in the affidavit of Shri
Salathia is far from convincing. In our opinion, in the
facts of this case this delay, apart from being inordinate,
is not explained on any convincing grounds.
In Khudi Ram Das v. State of West Bengal,(l) this Court
held that one of the basic requirements of clause (5) of
Article 22 is that the authority making the order of
detention must afford the detenu the earliest opportunity of
making a representation against the order of detention and
this requirement would become illusory unless there is a
corresponding obligation on the detaining authority to
consider the representation of the detenu as early as
possible. Thus, in the facts of this case we are not
satisfied that the representation was dealt with as early as
possible or as expeditiously as possible, and, therefore,
there would be contravention of section 13 of the Act which
would result in the invalidation of the order.
These are the reasons which had prompted us to quash
and set aside the detention order.
P.B.R. Petition allowed.
533
