{"id":29817,"date":"1982-03-17T00:00:00","date_gmt":"1982-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijay-kumar-vs-state-of-j-k-others-on-17-march-1982"},"modified":"2015-10-08T16:25:33","modified_gmt":"2015-10-08T10:55:33","slug":"vijay-kumar-vs-state-of-j-k-others-on-17-march-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijay-kumar-vs-state-of-j-k-others-on-17-march-1982","title":{"rendered":"Vijay Kumar vs State Of J & K & Others on 17 March, 1982"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vijay Kumar vs State Of J & K & Others on 17 March, 1982<\/div>\n
Equivalent citations: 1982 AIR 1023, \t\t 1982 SCR (3) 522<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nVIJAY KUMAR\n\n\tVs.\n\nRESPONDENT:\nSTATE OF J & K & OTHERS\n\nDATE OF JUDGMENT17\/03\/1982\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nISLAM, BAHARUL (J)\n\nCITATION:\n 1982 AIR 1023\t\t  1982 SCR  (3) 522\n 1982 SCC  (2)\t43\t  1982 SCALE  (1)240\n CITATOR INFO :\n F\t    1982 SC1539\t (7)\n R\t    1982 SC1543\t (13)\n R\t    1982 SC1548\t (5)\n RF\t    1987 SC2098\t (7)\n R\t    1989 SC1403\t (8,10,11)\n R\t    1989 SC1861\t (18)\n R\t    1989 SC2027\t (18)\n RF\t    1990 SC1196\t (10)\n RF\t    1990 SC1202\t (6)\n\n\nACT:\n     Jammu &  Kashmir Public Safety Act, 1978-Section 13(1)-\nDetaining  authority   must   give   the   detenu   earliest\nopportunity of\tmaking representation-\tForwarding  detenu's\nrepresentation to  Government-Jail authorities-Mere  channel\nof communication-Delay\tin transit-No  excuse for  delay  in\ndealing\t with  representation-Unexplained  delay-Invalidates\norder of detention.\n\n\n\nHEADNOTE:\n     The petitioner  has arrested on June 26, 1981 under the\nEnemy  Agent   ordinance.  The\t Chief\tJudicial  Magistrate\nrejected his  application for bail on the ground that he had\nno  jurisdiction  to  try  him.\t The  Addl.  Sessions  Judge\nrejected his  bail application\ton the ground that as ha was\nby then ordered to be detained under the J & K Public Safety\nAct the bail application has become infructuous.\n     The detention  order dated\t July 11, 1981 was served on\nthe detenue  in jail  on July  15, 1981.  His representation\ndated July  29, 1  981 was forwarded to the State Government\non July\t 29, 1981  and simultaneously a wireless message was\nsent on the same day. The representation was received by the\nGovernment on August 12, 1981. After investigations the file\nwas put\t up to\tthe Chief  Minister on\tAugust 28,  1981 for\napproval. The  Chief Minister rejected the representation on\nAugust 31,  1981 which was communicated to the petitioner in\njail on September 1, ]981. The detenu's case was referred to\nthe Advisory  Board  on\t August\t 3,  1981.  Its\t report\t was\nsubmitted on September 4, 1981.\n     In this  petition under  art. 32 of the Constitution it\nwas contended  before this Court on behalf of the petitioner\nthat as\t section 13 (1) of the Jammu & Kashmir Public Safety\nAct 1978 imposes an obligation on the detaining authority to\ngive  the  detenu  the\tearliest  opportunity  of  making  a\nrepresentation\tagainst\t  the  detention   order  the\tlong\nunexplained delay  in this case had invalidated the order of\ndetention.\n     Allowing the petition,\n^\n     HELD: The\tpetitioner's  representation  had  not\tbeen\ndealt with as expeditiously as possible. There was therefore\ncontravention of section 13 of the Act which invalidated the\ndetention. [532 D]\n     Preventive detention,  unlike punitive  detention, does\nnot afford  an opportunity to the detenu to explain his side\nof the matter before he is deprived\n523\nOf his liberty and therefore the statute makes it obligatory\non the\tauthorities to A afford him the earliest opportunity\nto represent  his case and a corresponding obligation on the\nauthority  to\tconsider  the\trepresentation.\t  The\tword\n\"earliest\"  which  qualifies  the  term\t \"opportunity\"\tmust\nequally qualify the corresponding obligation of the State to\ndeal  with   the  representation   if  and   when  made\t  as\nexpeditiously as possible. [529 H; 530 A-B]\n     The jail  authorities who\tare merely  a  communicating\nchannel have  to move  with promptitude\t so that  sufficient\nguarantee of  affording earliest  opportunity of  making the\nrepresentation and  the\t same  reaching\t the  Government  is\ntranslated into\t action. The corresponding obligation of the\nState to consider the representation cannot be whittled down\nby merely  saying that\ttime was  lost in transit. The State\nGovernment must\t gear up  its own  machinery to\t see that in\nthese cases  the representation\t reaches the  Government  as\nearly as  possible and is considered by the authorities with\nequal promptitude.  Any unexplained delay would be denial of\nthe statutory protection given to the detenu. [530 D-G]\n     In the  instant case  there were  two  time  lags:\t the\nrepresentation handed  in to the Jail Superintendent on July\n29, 1981  reached the  Government on August 12, 1981 after a\ntime  lag  of  fourteen\t days  and  the\t representation\t was\ndisposed of  on August 31, 1981 after a time lag of nineteen\ndays and  the delay has not been explained on any convincing\nground. [531 F, 532 B]\n     Khudi Ram Das v. State of West Bengal, [1975] 2 SCC 81,\nreferred to.\n     Preventive detention  is resorted\tto, to thwart future\naction. If  the detenu\tis already  in jail  charged with  a\nserious offence,  he is\t thereby prevented  from acting in a\nmanner prejudicial to the security of the State. Where there\nis need to order preventive detention of a person already in\njail the  detaining authority must disclose awareness of the\nfact that  the person  against whom  an order  of preventive\ndetention is being made is to the knowledge of the authority\nalready in  jail and yet for compelling reasons a preventive\ndetention order needs to be made. [528 F-G]\n     In the  instant  case  there  is  nothing\tto  indicate\nawareness of  the detaining  authority that  the detenu\t was\nalready in  jail for  more than 16 days and Yet the impugned\norder was  made. This  clearly exhibits\t non-application  of\nmind and  would result in invalidation of the order. But the\nCourt did not base its order on this ground. [528 G-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)\t No.
\n9516 of 1981.\n<\/p>\n
\t  (Under article 32 of the Constitution)
\n     Bhim  Singh,  P.D.\t Sharma\t &  Subash  Sharma  for\t the
\n     Petitioner.\n<\/p>\n
     M.N. Phadke and Altaf Ahmed for the Respondents,
\n524<\/span>
\n     The Judgment of the Court was delivered by
\n     DESAI, J. On February 9, 1982 we made an order quashing
\nthe detention order dated July 11, 1981 made by the District
\nMagistrate, Jammu  in exercise\tof the\tpower  conferred  by
\nSection 8  of The  Jammu and Kashmir Public Safety Act, 1978
\n(‘Act’ for  short) and\twe announced  that the reasons would
\nfollow. Here are the reasons.\n<\/p>\n
     The detenu Vijay Kumar was arrested on June 26, 1981. A
\npetition was  moved on\this behalf before the Chief Judicial
\nMagistrate Jammu  praying for releasing the detenu, on bail.
\nThis petition  for bail\t appears to  have come up before the
\nlearned Magistrate  on July 4, 1981 when the following order
\nwas made:\n<\/p>\n
\t  “I have  heard the  advocate for the applicant and
\n     perused the C.D. File. Put up for orders on 6.7.81.”<\/p><\/blockquote>\n
     When the  matter again  came up  on July  6, 1981,\t the
\nlearned Magistrate made the following order:\n<\/p>\n
\t  “Although there was nothing in the C.D. File about
\n     his (Petitioner)  involvement in  E.A.O. (Enemy  Agents
\n     ordinance) on  4.7.81, but\t today a detailed report has
\n     been presented in which one of the offences of which he
\n     is charged\t is u\/s\t 3, E.A.O.  which this\tCourt is not
\n     competent to try. Hence this application is returned to
\n     the applicant  for presentation  to  the  proper  court
\n     alongwith report “<\/p><\/blockquote>\n
     The detenu thereupon moved an application for releasing
\nhim on\tbail before  the learned  Additional Sessions Judge,
\nJammu, who,  we are  informed,\twas  competent\tto  try\t the
\naccused\t charged   with\t an   offence  under   Enemy  Agents
\nordinance. His\tpetition for bail came up before the learned
\nAdditional  Sessions   Judge  on  July\t11,  1981  when\t the
\nfollowing order was made:\n<\/p>\n
\t  “This application  pertains to Vijay Kumar accused
\n     who is  involved for  an offence under the Enemy Agents
\n     ordinance which  is being\tinvestigated by\t the Counter
\n     Intelligence   Police,   Jammu.   The   learned   Chief
\n     Prosecuting officer  and the  learned counsel  for\t the
\n     accused have been heard.\n<\/p><\/blockquote>\n
525<\/span><\/p>\n
\t  During the course of arguments an order has been A
\n     shown to me by the police that said Vijay Kumar accused
\n     has now  been ordered  to be  detained under the Public
\n     Safety Act.\n<\/p><\/blockquote>\n
\t  In view  of this  order, this bail application has
\n     become infructuous which is disposed of accordingly.”<\/p><\/blockquote>\n
     The detenu\t was served  with the  detention order dated
\nJuly 11, 1981 on the same day in jail because he was already
\nin jail\t from June  25, 1981. The grounds for detention were
\nserved on  him on  July 15,  1981. The\tdetenu submitted his
\nrepresentation\tdated\tJuly  29,   1981  addressed  to\t the
\nSecretary   the\t   Government\tHome   Department   to\t the
\nSuperintendent, Central\t Jail, Jammu  where the\t detenu\t was
\ndetained. One  Shri K.D.  Sharma,  Incharge  Superintendent,
\nCentral\t Jail  Jammu  has  stated  in  his  affidavit  dated
\nFebruary 6, 1982 that the representation of the detenu dated
\nJuly 29,  1981 was  forwarded to  the Government at Srinagar
\nvide  office  letter  No.  2595\t dated\tJuly  29,  1981\t and
\nsimultaneously a  wireless message  No. 2596 on the same day
\nwas  also   sent  to  the  Government  intimating  that\t the
\nrepresentation of  the detenu  had  been  forwarded  to\t the
\nGovernment for appropriate action. Mr. K S. Salathia, Deputy
\nSecretary to  the Government  of  Jammu\t and  Kashmir,\tHome
\nDepartment, Jammu,  in his  affidavit dated February 9, 1982
\nhas stated  that the  1 representation\tof  the\t detenu\t was
\nreceived from the Superintendent, Central Jail, Jammu in the
\noffice of  the Home  Department at  Srinagar on\t August\t 12,
\n1981. The  department also  received the  comments of  S.P.,
\nC.I.D. Counter\tIntelligence, Jammu  and thereafter the case
\nwas processed  on August  24, 1981 in the office of the Home
\nDepartment at  Srinagar and  the file  was placed before the
\nHome Secretary\ton August 25, 1981, who recommended the same
\nfor approval  on August 28,1981 to the Chief Minister (Home)
\nFrom the  same affidavit,  it further  transpires  that\t the
\nChief Minister\trejected the  representation on\t August\t 31,
\n1981  and  the\tsame  was  communicated\t to  the  detenu  on
\nSeptember 1,  1981. In\tthe meantime, the case of the detenu
\nwas referred  to the  Advisory Board  on August 3, 1981. The
\nAdvisory Board\tsubmitted its  report to  the Government  on
\nSeptember 4, 1981.\n<\/p>\n
     one Rattanlal, the brother of the detenu moved Petition
\nNo. 31\tof 1981\t for writ of Habeas Corpus in the High Court
\nof Jammu  and Kashmir  at Jammu.  The petition\tcame up\t for
\nhearing before
\n526<\/span>
\nthe learned Single Judge, who by his judgment dated December
\n7, 1981\t rejected the  same. Thereafter\t the detenu  by\t the
\npresent writ  petition, moved this Court under Article 32 of
\nthe Constitution for a writ of Habeas Corpus.\n<\/p>\n
     Section 8\tof the Act prescribes grounds for detention,
\none such  ground being to prevent any person from ‘acting in
\nany manner  prejudicial to  the security  of the  State. The
\nimpugned order\tof detention  recites  that  the  detenu  is
\ndetained with  a view  to preventing him from ‘acting in any
\nmanner prejudicial  to\tthe  security  of  the\tState.’\t The
\nexpression ‘acting in any manner prejudicial to the security
\nof the\tState’ has  been defined in Section 8 (3) of the Act
\nto mean making preparations for using, or attempting to use,
\nor using  or instigating,  inciting, provoking\tor otherwise
\nabetting the  use  offence,  to\t overthrew  or\toverawe\t the
\nGovernment established\tby the\tlaw in the State. The detenu
\ncontended before  the High  Court  that\t accepting  all\t the
\nactivities attributed  to  the\tdetenu\tin  the\t grounds  of
\ndetention at  their  face  value.  the\talleged\t prejudicial
\nactivity would\tnot fall  within the ambit of the expression
\n‘acting in  any manner\tprejudicial to\tthe security  of the
\nState.’ The  definition of  the expression as here in before
\nextracted indicates  that the  person accused  of ‘acting in
\nany manner prejudicial to the security of the State’ must be
\nshown to  be making preparations for using, or attempting to
\nuse, or\t using or  instigating,\t inciting  or  provoking  or
\notherwise abetting  the use  of force,\tand the intention or
\nmotive for  the activity must be to overthrow or overawe the
\nGovernment established\tby law\tin the\tState.\tThe  learned
\njudge of  the High Court following an earlier Division Bench
\njudgment of  the same  High Court in Kharotilal v. State,(1)
\nnegatived  this\t  contention  of   serving  that  where\t the
\nGovernment accusation against the detenu is that he had been
\nindulging  in\tsupplying  information\t for  Pakistan\tArmy
\nIntelligence and was passing on vital information pertaining
\nto the\tArmy department etc. to that Agency, such activities
\nwere likely  to assist\tPakistan  in  any  armed  aggression
\nagainst the  State and\twere a threat to the security of the
\nState. This  view needs\t examination but as the argument was
\nnot pressed before us, we refrain from examining the same.\n<\/p>\n
     Number of\tcontentions were  advanced at the hearing of
\nthis petition  but we  propose to deal with only two of them
\nwhich in our
\n527<\/span>
\nOpinion go  to the  root  of  the  matter  and\twhich,\twhen
\naccepted, in  our opinion,  would result  in invalidation of
\nthe order.\n<\/p>\n
     The first\tcontention is that the order of the District
\nMagistrate suffers  from non-application of mind inasmuch as
\nthe date  on which he passed the impugned order of detention
\ndated July li, 1981, the detenu was long before arrested and
\nlocked up in Jail on the allegation that he was suspected to
\nhave committed some offence under the Enemy Agents ordinance
\n8 of  Samvat Year  2005, and, therefore there was no present
\napprehension that the detenu, if not detained, was likely to
\nact in\tany manner prejudicial to the security of the State.
\nThe  District\tMagistrate  passed  the\t impugned  order  of
\ndetention on  being satisfied that with a view lo preventing
\nthe detenu  from acting\t in  a\tmanner\tprejudicial  to\t the
\nsecurity of  the State\tit was\tnecessary to detain him. The
\norder ex  facie does  not show\tthat the detaining authority
\nwas aware  that the  detenu was already arrested and kept in
\njail. If  the detaining\t authority was conscious of the fact
\nthat the  detenu was  already arrested and confined in jail,
\nthe order  ex facie  would have\t shown that  even though the
\ndetenu was  in jail,  with a  view to  preventing  him\tfrom
\nacting in  a manner prejudicial to the security of the State
\nit was\tnecessary to detain him. There is a foot note in the
\norder that  the order  was forwarded  to the  S P.,  C.I  D.
\nCounter Intelligence, Jammu for execution of the order under
\nsection 3  of the Act. The further direction was that notice
\nof the\torder shall  be given  to Vijay Kumar s\/o Anant Ram,
\nr\/o H.\tNo. 609,  Peer Mitha,  Jammu, by  reading  over\t and
\nexplaining the\tsame to\t him in language he understands. The
\ndetention order\t does not give the slightest indication that
\nthe detaining  authority  was  aware  that  the\t detenu\t was
\nalready in jail yet on the material placed before him he was
\nsatisfied that\ta detention order ought to be made. There is
\nnothing in  the order  to show\tthat to the knowledge of the
\ndetaining authority  the detenu\t was already  in jail  for a
\nperiod of  more than  lo days  before the  date on  which he
\npassed the  order and  that such detention in the opinion of
\nthe detaining  authority was  not sufficient  to prevent the
\ndetenu from  acting in\ta manner prejudicial to the security
\nof the State, and therefore power under section 8 of the Act
\nis required to be . exercised.\n<\/p>\n
     The detenu\t in para 3 of his petition before this Court
\nhas specifically  averred that\the was\tarrested on  June 26
\n1981, the correct
\n528<\/span>
\ndate being  June 25,  1981, under  a  false  and  fabricated
\ncharge. Shri  K.S. Salathia,  Deputy Secretary to Government
\nof Jammu  & Kashmir,  Home Department,\twho  has  filed\t the
\ncounter affidavit  has with  reference to the averments made
\nin para\t 3 of  the  petition  made  a  very  very  ambiguous
\nstatement that\tfor the purpose of J and K Public Safety Act
\nthe petitioner\twas arrested  on July  11, 1981, pursuant to
\nthe detention  order. It  is no\t where\tsuggested  that\t the
\ndetaining authority  was aware\tof the\tfact that the detenu
\nwas already  in jail  and that\tkeeping in view the fact the
\ndetenu was  already locked  up in jail yet it was considered
\nnecessary  for\tpreventing  him\t from  acting  in  a  manner
\nprejudicial to\tthe  security  of  the\tState  to  pass\t the
\ndetention order.  lt may further be pointed out that Shri A.
\nSahasranaman, the  District Magistrate of Jammu who has made
\nthe impugned detention order, filed an affidavit on February
\n7, 1982.  Of course,  in fairness  to him  it must be stated
\nthat this  affidavit was for the limited purpose of pointing
\nout as\tto how\the dealt  with the case of Hans Raj, another
\ndetenu whose  detention was quashed by this Court subsequent
\nto the\torder of  this Court.  It may  be noticed in passing
\nthat Hans  Raj and  the detenu\twere involved jointly in the
\nactivity, which\t led to\t the detention\tof the\tdetenu. Even
\nthough this  affidavit was filed for the limited purpose, it
\ncame on\t record after  the case\t was taken up for hearing by
\nthis Court  and the  affidavit at  least does  not throw any
\nlight on  the vexed question whether the detaining authority
\nwas aware  of the fact that the detenu on being suspected of
\nhaving committed  a serious offence, was already in jail for
\na period  of more  than a  fortnight before  the date of the
\nimpugned detention  order. Preventive  detention is resorted
\nto, to\tthwart future  action. If  the detenu  is already in
\njail charged with a serious offence, he is thereby prevented
\nfrom acting  in a  manner prejudicial to the security of the
\nState. May  be, in a given case there yet may be the need to
\norder preventive  detention of a person already in jail. But
\nin such\t a situation  the detaining  authority must disclose
\nawareness of the fact that the person against whom an or-der
\nof preventive detention is being made is to the knowledge of
\nthe authority already in jail and yet for compelling reasons
\na preventive  detention order  needs to\t be made.  There  is
\nnothing to indicate the awareness of the detaining authority
\nthat detenu  was already  in jail and yet the impugned order
\nis required  to be  made.  This,  in  our  opinion,  clearly
\nexhibits  non-application   of\tmind  and  would  result  in
\ninvalidation of\t the order.  We, however,  do not  base\t our
\norder on this ground.\n<\/p>\n
529<\/span><\/p>\n
     The second\t contention which in our opinion goes to the
\nroot A\tof the\tmatter is that there has been a violation of
\nsection 13 of the Act. Section 13 provides as under:\n<\/p>\n
\t  “13. Grounds of order of detention to be disclosed
\n     to persons\t affected by the order:-(I) When a person is
\n     detained  in   pursuance  of  a  detention\t order,\t the
\n     authority making  the order  shall, as  soon as may be,
\n     but  not\tlater  than  five  days\t from  the  date  of
\n     detention, communicate  to him the grounds on which the
\n     order has\tbeen made, and shall afford him the earliest
\n     opportunity of  making  a\trepresentation\tagainst\t the
\n     order to the Government.”\n<\/p><\/blockquote>\n
     x\t\t     x\t\t       x
\n     The provision  contained in  section 13  (1) is  on par
\nwith the  constitutional protection  conferred by Article 22
\n(5) of the Constitution of India. The contention is that the
\nobligation on  the detaining  authority\t to  afford  to\t the
\ndetenu the  earliest opportunity  of  making  representation
\nagainst the  order of  detention, in  order not to render it
\nillusory simultaneously\t obliges the  authority to  whom the
\nrepresentation is  made to  consider the same expeditiously.\n<\/p><\/blockquote>\n
Submission is that a statutory right conferred on the detenu
\nenabling him  to make  a representation\t which of  necessity
\nmust be giving an opportunity to point out to the Government
\nas to  why the detention order was not justified and that it
\nmust be\t revoked and the personal liberty deprived under the
\ndetention  order  must\tbe  restored,  is  to  convince\t the
\nGovernment  to\t take  into   consideration  the  facts\t and
\ncontentions set\t out in the representation, which must imply
\nthat the  Government must  consider the\t same. The  earliest
\nopportunity to be afforded for making representation inheres
\nthe corresponding  duty of  the Government  to consider\t the
\nrepresentation so  received expeditiously. The reason behind
\nenacting this  provision is  manifest. When  power to detain
\nwithout trial  is exercised,  the authority  exercising\t the
\npower must  afford an  opportunity to the detenu to convince
\nthe Government\/detaining  authority that  the power  was not
\njustifiably exercised  or no  occasion arose for exercise of
\nthe power.  In a punitive detention which is the end product
\nof a  trial in\twhich the  convict participates and has full
\nopportunity to present his side of the case while preventive
\ndetention ordinarily  described\t as  jurisdiction  based  on
\nsuspicion does\tnot afford  any opportunity to the detenu to
\nexplain his side of the matter before
\n530<\/span>
\nhe is  deprived of the liberty and; therefore, so soon after
\nthe detenu  is deprived\t of his personal liberty the statute
\nmakes it  obligatory on\t the authorities concerned to afford
\nhim an\tearliest opportunity  to represent  his side  of the
\ncase and  which inheres\t the corresponding obligation on the
\nauthority to  consider the  same. The  word ‘earliest’ which
\nqualifies  the\t opportunity  must   equally   qualify\t the
\ncorresponding obligation  of the  State\t to  deal  with\t the
\nrepresentation\tif   and  when\tmade,  as  expeditiously  as
\npossible. The opportunity contemplated by the section is the
\nopportunity to\tmake a\trepresentation against the detention
\norder to  the Government  and therefore\t ex  hypothese\tsoon
\nafter the person is deprived of his personal liberty he must
\nbe   afforded\tthe   earliest\t opportunity   to   make   a
\nrepresentation. The  representation is\tto be  made tc.\t the
\nGovernment. Therefore the detenu who has already been served
\nwith the  detention order  and thus  deprived of his liberty
\nwould ordinarily be in a position to send his representation
\nthrough the jail authorities. The jail authority is merely a
\ncommunicating channel  because\tthe  representation  has  to
\nreach the  Government which enjoys the power of revoking the
\ndetention  order.   The\t intermediary  authorities  who\t are
\ncommunicating authorities  have also  to move with an amount
\nof promptitude\tso that the statutory guarantee of affording
\nearliest opportunity  of making\t the representation  and the
\nsame reaching  the Government is translated into action. The
\ncorresponding  obligation  of  the  State  to  consider\t the
\nrepresentation cannot be whittled down by merely saying that
\nmuch time  was lost in the transit. If the Government enacts
\na law like the present Act empowering certain authorities to
\nmake the  detention order  and also  simultaneously makes  a
\nstatutory provision of affording the earliest opportunity to
\nthe detenu to make his representation against his detention,
\nto the\tGovernment  and\t not  the  detaining  authority,  of
\nnecessity  the\t State\tGovernment  must  gear\tup  its\t own
\nmachinery to  see that\tin these  cases\t the  representation
\nreaches the  Government as  quickly as\tpossible and  it  is
\nconsidered by  the authorities\twith equal  promptitude. Any
\nslackness in  this behalf  not properly\t explained would  be
\ndenial of  the protection conferred by the statute and would
\nresult in invalidation of the order.\n<\/p>\n
     Reverting to  the facts of this case, the detenu who in
\njail from  June 25,  1981, was served with a detention order
\non July\t 11, 1981, the very day on which the detention order
\nwas made.  The grounds\tof detention were served upon him on
\nJuly  15,   1981.  Admittedly\tthe  detenu   submitted\t his
\nrepresentation to  the Superintendent  of Jail\ton July\t 29,
\n1981. One K.D. Sharma, Medical officer, Central Jail,
\n531<\/span>
\nJammu, Incharge\t Central  Jail,\t Jammu\twho  has  filed\t his
\naffidavit dated\t February 6,  1982, has\t admitted  that\t the
\ndetenu\tsubmitted   his\t representation\t  addressed  to\t the
\nSecretary to  the Government,  Home Department,\t on July 29,
\n1981. He  proceeds to assert that the said representation in
\noriginal was forwarded by post to the Government in Srinagar
\nvide his  office No.  2595 dated  July 29,  1981. He further
\nadds that  a wireless  message No. 2596 dated July 29, 1981,
\nwas also  sent\tto  the\t Government  to\t intimate  that\t the
\nrepresentation of  the detenu  had  been  forwarded  to\t the
\nGovernment for appropriate action. Postal communication from
\nJammu to Srinagar hardly takes two days unless it is pointed
\nout that there was some break down of communication. Nothing
\nto that effect was brought to our notice. Now, Shri Salathia
\nhas  stated   in  his\tcounter\t  affidavit   that   as\t  no
\nrepresentation was  received a\twireless message was sent on
\nAugust\t6,   1981,  making   reference\t to   the   wireless
\ncommunication from  the\t Superintendent\t of  Jail  that\t the
\nrepresentation referred\t to in\tthe wireless  message of the
\nJail Superintendent has still not been received at Srinagar.
\nHe requested  the Superintendent to send a duplicate copy of
\nthe same  by air  consignment, and  gave a further direction
\nthat in\t future\t all  such  communications  should  be\tsent
\nthrough air consignment. Be that as it may, he says that the
\nrepresentation was  received in\t the office  on\t August\t 12,
\n1981. The  comments from  S.P., C.I.D., Counter Intelligence
\nwere called  for on  August 14,\t 1981. He does not state the
\ndate on\t which they  were received but he says that the case
\nwas examined  and processed on August 24, 1981 in the office
\nand the\t file was placed before the Home Secretary on August
\n25, 1981,  who recommended  the same  for approval on August
\n28,  1981,  and\t the  Chief  Minister  (Home)  rejected\t the
\nrepresentation on August 31, 1981, and the fact of rejection
\nof the\trepresentation was  communicated to  the  detenu  on
\nSeptember 1,  1981. There  are two  time lags  which may  be
\nnoticed.   Representation    admittedly\t  handed    in\t the
\nSuperintendent of  Jail on July 29, 1981 to at Jammu reached
\nSrinagar, the  summer capital  of the  State on\t August\t 12,
\n1981, which shows a time lag of 14 days. The second lime lag
\nis, from  our point  of view,  more glaring. Even though the
\nconcerned office  was made aware of the fact by the wireless
\nmessage of the Superintendent of Jail, Jammu, dated July 29,
\n1981, that  a representation  of the detenu has been sent by
\npost, the  . first  query about\t its non-receipt came as per
\nthe wireless  message dated  August 6,\t1981.  That  can  be
\noverlooked, but\t it has one important message. The concerned
\noffice was aware of the fact that a representation has
\n532<\/span>
\nalready been  made and\ta duplicate  was sent  for. With the
\nbackground of  this knowledge  trace  the  movement  of\t the
\nrepresentation from  the date  of its admitted receipt being
\nAugust 12,  1981. If  the  representation  was\treceived  on
\nAugust 12,  1981, and  the same\t office disposed  it  of  on
\nAugust 31,  1981, there\t has been  a time lag of 19 days and
\nthe explanation\t in that  behalf in  the affidavit  of\tShri
\nSalathia is  far from  convincing. In  our opinion,  in\t the
\nfacts of  this case this delay, apart from being inordinate,
\nis not explained on any convincing grounds.\n<\/p>\n
     In Khudi Ram Das v. State of West Bengal,(l) this Court
\nheld that  one of  the basic  requirements of  clause (5) of
\nArticle 22  is\tthat  the  authority  making  the  order  of
\ndetention must afford the detenu the earliest opportunity of
\nmaking a  representation against  the order of detention and
\nthis requirement  would become\tillusory unless\t there is  a
\ncorresponding  obligation  on  the  detaining  authority  to
\nconsider the  representation  of  the  detenu  as  early  as
\npossible. Thus,\t in the\t facts\tof  this  case\twe  are\t not
\nsatisfied that the representation was dealt with as early as
\npossible or  as expeditiously  as possible,  and, therefore,
\nthere would  be contravention of section 13 of the Act which
\nwould result in the invalidation of the order.\n<\/p>\n
     These are\tthe reasons  which had\tprompted us to quash
\nand set aside the detention order.\n<\/p>\n
P.B.R.\t\t\t\t\t   Petition allowed.\n533<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vijay Kumar vs State Of J & K & Others on 17 March, 1982 Equivalent citations: 1982 AIR 1023, 1982 SCR (3) 522 Author: D Desai Bench: Desai, D.A. PETITIONER: VIJAY KUMAR Vs. RESPONDENT: STATE OF J & K & OTHERS DATE OF JUDGMENT17\/03\/1982 BENCH: DESAI, D.A. BENCH: DESAI, D.A. ISLAM, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29817","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVijay Kumar vs State Of J & K & Others on 17 March, 1982 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijay-kumar-vs-state-of-j-k-others-on-17-march-1982\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijay Kumar vs State Of J & K & Others on 17 March, 1982 - 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