Case: Sampat Prakash Vs. State Of Jammu &amp; Kashmir

order has been made.6. Relying upon the terms of Sec. 10 (1) as amended by Section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised. This argument is plainly unsustainable.Section 13A opens with the words "not withstanding anything contained in this Act, and provides that a person may detained for a period not longer than six months without obtaining the opinion of the Advisory Board. It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to be detained is not to exceed six months. Section 13A is an exception to Section 10 as well as to all other relevant provisions of the Act, and in case of conflict Section 13A prevails. The petitioner was detained six months from March 16, 1968 to September 16, 1968 without obtaining opinion of the Advisory Board.We will be justified in accepting the contention of the State that it was intended, when the order was passed detaining the petitioner, that he was not to be kept in detention for a period longer than six months and his case fell within the terms of Section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.7. It was said by Counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of Section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or within six months.The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order. The only plea raised by the petitioner in support of that plea is in paragraph 15 of the petition,that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement," and that the fresh order of detention was passed mala fide. No particulars are furnished which justify an inference, that in resorting to the provisions of the Act the Governments action was actuated by ill-will or taken for some collateral purpose.8. Reliance was also placed upon the recitals in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September 16, 1968, andit was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed. On comparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9. The plea that the grounds were vague and indefinite cannot also be accepted. It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague and indefinite.10. One more question needs to be dealt with. The petitioner who was present in the Court at the time of hearing of this petition complained that he is subjected to solitary confinement while in detention.It must be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5.The effect of Section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion the Advisory Board, if he is to be detained for a period longer than three months, but not longer than six months from the date of detention.By sub-section (2) the periods prescribed for the various steps under the Act are doubled : for making report to the District Magistrate when he exercises the power of detention the period is extended to twentyfour days for the Government to serve the grounds of the order under Section 8 (1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by Section 13A the period is extended to sixty days. Again by the proviso to Section 8 (1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has beencomparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9.The plea that the grounds were vague and indefinite cannot also be accepted.It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague andmust be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal.