tion No 111 of 1969
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus
RK Garg and Anil Kumar Gupta for the petitioners
R Gopalakrishnan and RN Sachthey for the respondent
685 The Judgment of the court was delivered by Sikri J
This is a joint petition by two detenues under article 32 of the Constitution praying for the issue of a writ of habeas corpus or other appropriate writ direction or order directing that the petitioners be released
The petitioner Arshad Ahmad was detained in pursuance of Detention Order dated September 19 1967 passed under section 31ai of the Jammu  Kashmir Preventive Detention Act 1964
The copy of the order on the record shows that the order was served on the detenu by Jaswant Singh Deputy Superintendent of Police CID Jammu on September 27 1967
No grounds of detention were served on the detenu but an order dated October 25 1967 issued by the Secretary to the Government Home Department was served on him informing him that it would be against the public interest to disclose the facts or the grounds of detention to him
The learned counsel for the petitioner Mr Garg contends that the order dated October 25 1967 was served too late and the detention of the petitioner became illegal when the time for serving the grounds of detention had expired
Section 8 of the Jammu and Kashmir Preventive Detention Act 1964 provides that 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 ten 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
 But the proviso to section 8 states Provided that nothing in this sub section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State if the authority making the order by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him the grounds on which the detention order has been made
 The learned counsel for the State contends that if an order has been made under the proviso it does not matter whether the order is made and served beyond the ten days  time specified in We are unable to accept this contention
There is no doubt that it is the duty of the detaining authority to communicate the 686 grounds within ten days of the date of detention if the case does not fall within the proviso
If the detaining authority neither communicates the grounds of detention nor informs the detenu under the proviso within 10 days of the detention the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal
A similar point arose before this Court in Abdul Jabar Butt vs State of Jammu  Kashmir1
This Court was then considering the Jammu and Kashmir Preventive Detention Act IV of Sambat 2011 and similar provisions contained therein
Das CJ observed If the grounds are not communicated to the detenu within the period of time prescribed by the expression as soon as may be the detenu becomes deprived of his statutory right under sub s1 and his detention in such circumstances becomes illegal as being otherwise than in accordance with procedure prescribed by law
In order to prevent this result in a certain specified cases the proviso authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub section
It therefore stands to reason and is consistent with the principle of harmonious construction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of sub section
1 should be exercised before that very result sets in Although there is some change in the language in the present act in substance the provisions are similar as far as the present point is concerned
are here concerned with the liberty of a subject and we must adopt a construction which would not have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in section 8
Even from the practical point of view we are unable to
see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or not in the public interest
All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or not
In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released
Coming to the case of the second petitioner Fazal Hussain he was detained by order dated January 3 1968 passed under 1   59
687 section 31 read with section 5 of the Jammu and Kashmir Preventive Detention Act 1964
The order of detention was served on the petitioner in the Central Jail on January 8 1968 and the same was read out to him
By order dated January 11 1968 the petitioner was informed that it was against public interest to disclose facts or to communicate to him the grounds on which the detention order was passed
The affidavit stating these facts is sworn to by the Additional Secretary to the Government Jammu and Kashmir Home Department and it is stated in the verification that these facts were stated on the basis of information derived from the record of the case which he believed to be true
The learned counsel for the petitioner contends that the Deputy Superintendent Central Jail who is alleged to have served the order of detention on the petitioner should have filed the affidavit
The State has annexed to the affidavit a copy of the Government Detention Order and below the detention order the following endorsement exists The notice of this order has been served upon Shri Fazal Hussain so Ayub Khan detenu by reading over the same to him
Sd Dy
Superintendent Central Jail Jammu 81 In view of this endorsement  the order of detention we do not consider that it was necessary that the Deputy Superintendent Central Jail should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain
No other point is raised
The petition of Fazal Hussain accordingly fails and is dismissed
RKPS Petition dismissed


Summary:
In a petition under article 32 of the Constitution the first petitioner s detention under section 31ai of the Jammu and Kashmir Preventive Detention Act 1961 was challenged as illegal on the basis that no grounds of detention were served on him but that an order informing him that it would be against public interest to disclose the grounds to him was served on him after the expiry of 10 days prescribed in section 8 it was contended that his detention was therefore illegal
In the case of the second petitioner it was claimed that the affidavit in reply to the petition which set out the facts relating to the service of the order of detention and an order under the proviso to section 8 was sworn to by an Additional Secretary on the basis of information derived from the record of the case
and not by the Jail Superintendent who was alleged to have served the orders on the detenu
HELD 1 The detention of the first petitioner was illegal and he must be released
It is the duty of the detaining authority to communicate the grounds of detention within 10 days of the date of detention if the case does not fall within the proviso to section 8
If the detaining authority neither communicates the grounds of detention nor informs the detenu under the proviso within 10 days of the detention the detention would become illegal and a subsequent order under the proviso would not have the effect of rendering the detention legal
Abdul Jabar Butt vs State of Jammu and Kashmir  59
2 The petition filed by the second petitioner must be dismissed
The State had annexed to its affidavit a copy of the Government detention order on which the Jail Superintendent had endorsed the fact of its service
In view of this it was not necessary for the Superintendent to have filed an affidavit of having effected service