Judgment Case ID: 2573

Judgment:
n No. 3 61 of 1968. Petition under article 32 of the Constitution of India for writ in the nature of habeas corpus. M.K. Ramamurthi	 Shyamala Pappu and Vineet Kumar	 for the petitioner. R. Gopalakrishnan and R. N	 Sachthey	 for the respondent. The Judgment of the Court was delivered by Shah	 J. On March 16	 1968 the petitioner was arrested and ordered to be detained under section 3(1) (	a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964. On March 26	 1968	 he was served with the grounds of detention. On May 3	 1968	 the petitioner moved a petition for a writ of habeas corpus in this Court. The petition was rejected by this Court on October 10	 1968. In the meanwhile the order dated March 16 1968	 was revoked on September 16	 1968	 and another order was served upon the petitioner on the same day. On September 24	 1.968	 he was served with the grounds of detention for the fresh order	 and his case was referred to the Advisory. Board on October 26	 1968. On October 30	 1968	 the Advisory Board recommended that the petitioner. be detained. The petitioner then moved this petition on November 11	 1968 a writ of habeas corpus. Two contentions in the nature of preliminary objections were raised in support of the petition. It was urged that (1) the petitioner was	 in spite of a specific request	 denied a personal hearing before the Advisory Board	 and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention. An affidavit is filed by the Secretary to the Government of Jammu & Kashmir affirming that the petitioner made no request for production before the Board for a personal hearing. He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act. In view of this affidavit	 counsel for the petitioner did not press he two preliminary contentions. 576 Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory board till September 24	 1968 and on that account his detention was invalid	 and he could not be continued in detention thereafter;(2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By article 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention But article 35 (c) in its application to the State of Jammu & Kashmir provides "no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir	 whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order	 1954	 shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part	 but any such law shall	 to the extent of such in consistency	 cease to have effect on the expiration of fifteen years from the commencement of the said Order	 except as respects things done or omitted to be done before the expiration thereof. " The protection of cls. (5)	 (7) of article 22 insofar the	 provision are inconsistent therewith does not avail the petitioner. By s.3 the Government of Jammu and Kashmir is entitled	 if satisfied with respect to any person that with a view to Preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order	 to make an order direct that such person be detained. By section 8 it is provided : "(1) 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 on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government. (2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. " Section 9 provides for the constitution of Advisory Board and section 10 deals with references to the Advisory Board.that section the Government is required within thirty days from the date of detention under the order to place before the Advisory Board the grounds on which the order has been made and the 577 representation	 it any	 made by the person affected by the order. By section 12 it is provided: "(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person	 the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has rePorted that there is in its opinion no sufficient cause for the detention of the person concerned	 the Government shall revoke the detention order and cause the person to be released forthwith. 		 Section 13 prescribes the maximum	 period of detention for which any person may be detained in pursuance of any detention order. Section 13A which was added by Act 8 of 1967 enables the State to detain a person for a period of two years. Section 13A provides: "(1) Notwithstanding anything contained in this Act	 any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances may be detained for a period longer than three months	 but not longer than six months	 from the date of detention	 without obtaining the opinion of any Advisory Board	 namely	 when such person has been detained with a view to preventing him from acting in any manner prejudicial to (i) the 'security of the State; (ii) the maintenance of public order; Provided that where any such person has been detained with a view to Preventing him from acting in any manner prejudicial to the security of the State grounds on which the detention order has been made are not communicated to him under the proviso to section 8 (1)	 such person may be detained for a period of two years from the date of detention without obtaining the opinion of the Advisory Board. (2) In the case of every person detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order	 the provisions of this Act shall have effect subject to the following modifications	 namely: (a) in sub section (3) of section 3	 for the words 'twelve days '	 the words 'twenty four days ' shall be substituted. 578 (b) in sub section (1) of section 8	 (i) for the words 'five days ' the words 'ten day 's shall be substituted; (ii) the following proviso shall be inserted at the end	 namely 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. ' (c) in section 10	 (i) after the words	 'In every case where a detention order has been made under this Act ' occurring in the beginning	 the brackets and words '[other than a case to which the proviso to section 8(1) applies] ' shall be inserted; and (ii) for the words 'thirty days ' the words 'sixty days ' shall be substituted	 (b) in section 1 1	 for the words 'ten weeks ' the words five months shall be substituted." 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 of 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 twenty four 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 been made	 Relying upon the terms of section 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 argu 579 ment is plainly unsustainable. Section 13A opens with words "Notwithstanding anything contained in this Act"	 and provides that a person may be 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 conflicts. 13A prevails. The	 petitioner was detained for six months from March 16	.1968 to September 16	 1968 without obtaining the opinion of the Advisory Board. We will be justified in accepting the contention of the State that it was intended	 when the order was pass 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. 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 1 5 of the p etition	 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 Government 's action was actuated by ill will or taken for some collateral purpose. 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	 and it 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 580 conceded by the	 Government unless they resort to violence 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 consequence of further information the Government was required to issue a fresh order	 the original order 	or the fresh order was illegal. 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 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 ag ainst 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 said to be vague and indefinite. 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. The petition fails and is dismissed. V.P.S. Petition dismissed.

Summary:
On March 16	 1968 the petitioner was arrested and ordered to be detained under section 3(1) (a) (1) of the Jammu and Kashmir Preventive Detention Act	 1964. On September 16	 1968	 the order was revoked and another order was served on him. on September 24	 1968 the petitioner was served	 with the grounds for the fresh order of detention His case was referred to the Advisory Board on October 26	 1968 and the Board recommended his detention. Under section 10 of the Act	 as amended by section 13A	 of the Amending Act 8 of 1967	 the Government is required to refer a case to the Advisory Board within 60 days from the date of detention: In a petition for the issue of a writ of habeas corpus it was contended that : (1) Since the case of		 the petitioner was not referred to the Advisory Board within 60 days of the date of detention (March 16	 1968) the detention was invalid; (2) The authorities acted mala fide in making the detention order; (3) The grounds in support of the order were vague and indefinite; and (4) 'Mat his being subjected to solitary confinement while in detention was illegal. HELD : (1) There was no reason for not accepting the statement of the State that it was not intended	 when the detention order of March 16	 1968 was passed that the petitioner was to be kept in detention for a period longer than 6 months. Therefore	 his case fell within the terms of s.13A(1)which provides that 'notwithstanding anything	 contained in this Act a person may be detained for a period not longer than 6 months without obtaining the opinion of the Advisioiry Board. In the present case the petitioner was detained under the first order only for a period of 6 months when that order was revoked by the second order of detention. [579 C] (2)The grounds for the two orders are not identical; When the first Order was passed the petitioner was not intended to be detained for a period exceeding 6 months. Thereafter	 in consequence of further information that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order	 the Government had to issue a fresh order. Therefore. it could not be said that the Government acted mala fide inmaking either the original or the fresh order. [579 G H; 580 A B] (3) The order clearly stated facts relevant to the grounds of detention	 except those which Government considered to be against public interest to disclose. Under section 8 (2) it is open to the Government to withhold such facts. Because of the withholding of such facts the grounds in the order of detention could not be said to. be vague or indefinite. [580 C E] 575 (4) Notwithstanding the broad principles of the rule of law	 equality and liberty of	 the individual enshrined in the Constitution	 it tolerates on account 1 the peculiar conditions prevailing	 legislation in relation to preventive detention	 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 publish	 and the restrictions placed must	 consistently with the effectiveness of detention	 be minimal. Since a detenu is not a convict he cannot be subjected to solitary confinement.