Suna Ullah Butt v. State of Jammu & Kashmir & Ors.

Kbannllt _J •. This is. a petition through jail under article 32 of the Consutuuon for Jssumg a writ of habeas corpus by Sun<t Ullah Butt, who ~as been ordlCr~ by the District Magistrate poonch to be detaine<;f under ~xon 3 (2). read with section s of the Jammu & Kashmir Preven_uve ~tention Act, 1964 (herein-after r~ferred to as the A~t) .~tth a VIew to pr~euting him "from acting JD any manner preJUdtclal to the security of the State"

The order .of detention was passed by the District Magi.itrate ·. on October 24, 1971, In pursuance of the detention order the petitioner was taken into cu~tody tho same day and was expl~ined lhe substance of the detention order. The petitioner was there-after kept in Central Jail Jammu. The grounds of detention wer~ eommunicated to the petitioner on November 1, 1971 in accord-ance with section 8 of the Act, which requires that such grounds should be communicated to the detenu as soon as possible but-JlCit later than 10 days from the date of detention. The order or I) detention was approved by. the Chief Minister, who was incharge

of the Home Department., on November 12, 1971. The case of lbc petitioner was placed before the Advisory Board on December 16, 1971. The Board communicated its opinion on February 19, 1972 that the detention of. the petitioner was justified. An order ~onfinning the detentiOn order w~ thereafter made by .ru, State Government on March 3, 1972 under section 12 of the Act.

The grounds of detel)tion gave tho following particulars :

"You. Son uUah s/o Khawaja Mahad Joo r/o.Sri Chohan a, P /S Surenkot, District Poonch, were recnu~ as a source by Cap. Kiani and Sube.dar Shah of Pa~ lotelliRence in 1968. when you had crossed over to POK and settled at Palanf!ri.

· 2. Working as souru of the ~bove mentioned offi: ccrs, you introduced Abdnl Ghani s/ o Asda Rather resident of your own village, ~afiq ~/o Goffllf J1oo G· r/o Poonch and Gbulam Mohi-ud-Dtn s/o Kanm oo

r/o Seri Chohana with Pak lnteltigenco, who ~ere re-cruited as ~ources by them.. These sour~ supphed vital Indian Army informations to Pak Intelhgenc~.

· 3. You at the insmnce oC above menti~ned. offi;r:. o{ Pak Intelligence eros~ over to 1 o~r 5}~~i;~ Ar~y 1971 with the pUJ'P()$0 ot further ~upp ywg '

informations to Pak: Iotelligonce.

1 n · of the a bo ve you r activities were founct hence

v1ew 'tv f the State e!ltremely -. prejudicial to the secun.J 0 '

r-------~----...., · ..

you were detaitled mtdtr She J·ct ~ ~~ ~ Ac~ so that you are prevented from indulgmg m such I netarious activities." · l Tbe petition has been resiste<;l by tho S~te of J~u 4: Kash-mir and other respondents, and the affidaVIt of Shri Moba!'JUUd 1. Aslin Additional Secretary to the Government of I ammu & Kash. I I mir, Home DepartmeJ}t, has been filed in opposition to tba petition. I I Arguments have been addressed by Mr. Om Parkash amicur I I curiae on behalf of the petitioner, while the respondents ha-ve j been represented by Mr. R H. Dhebar.

The first contention which has been raised by Mr. Om Pu-I kash on behalf of the petitioner is that he was arre.)tOO on Octobclr I 6, 1971 and was already in custody when the detention order · l was made against him on October 24, 1971. It is stated that no detention order can legally be mad;, against a person who ii j already iri custody on the date of the detention order. It is, !n l our opinion, not necessary to exprcs3 an opinion on the abstract proposition of law that no detention order can be made against a person wbo is already in custody on the date of the making of such ord:r because, in the present case, we find that the petitinoer was D?t m custody on October 24, 1971 when the order for his dctent10.n. ~as ~ad:. As no express ground had been taken by the t>ehttone.r m . hts. petition that the detention order was legal .E because of his bemg m custody on the date of the mnking of that order, no averment was made in the affidavit initi:llly filf'fl. .:>n be-half of the respo~dents on. the point as to whether the petitioner was or -was not m custody on the date the detention order w~ P~~sed. Whe~ an ·argument on that score was advanced we ~ JOU~ed the case to ~nable the resnondents to file affida~it on r ~e pomt. Two affidavits have thereafter been filed on behalf of 1 e resoon~ents . Ac(:ording to 'he affi(lavit of Shri · Krishantat Gupta, Station House Officer, Police Station Poonch the petiti~Jll· ~;::~:t~l gcJc;>ber 6, 1 97! in a c~se unde~ the Internal Ordnian d . 1 mance, Public Secuntv Act, Enemy A<!tnt

sed~ an 1 ndtan Arms Act. The petitioner was howeo;er. on October \\e1 2.0: 1971. It is further in tho of the police on Oct~~ t~~t Petit toner was not in the cust~Y was mad Th r ' 1 when the order for his detentJon Dr. Ravi~dra cfu~~e~ffi~ayit which .ha:r been filed is that$ Jammu. Acoordin~ ' to n;at~g Sunenntendent of ·central J mr petitioner was broul!ht !ta-to ~tr :X tJ'~· the records sho~ that m oursuance of order dated 81bel Jammu on October 2~~ wu_.. Jl Marirtr:ate Poonch. Th to ~ l4. 1971 of the J: l _. di~lievUig tho appea!" to ~ no co~ent V;rOU11d contained 111 the a.ffidaY.its ot Krishanlal Gupta and Dr. Raviudra Gupta. It ia manifelt from these two atti<iavits that ~ peuuoner wa.i not in cusLOCly on October 24, 1971 when the order for his detention was made by the District Magistrate.

The second contention of Mr. Om Parkash relates to the fact that the period for which the petitioner was to be detained bas not been mentioned in the ord.Cr of the State Government dated March 3, 1972 confirming the detention order. It is urged that the iailure of the State Government to specify the period of deten-tion introduces an infirmity in the detention of the petitioner. Thia contention, in our opinion, is without any force. According to sub-section ( 1 ) of section 17. of the Act, in any case where the Advisory Board has reported that there is, in its opiruon, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person con-cerned for such period as it thinks fit. Section 13 of the Act specifies ,the maximum period of detention. According to that section, the maximum period for which a person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be two years from the date of detention. It is .. further provided that nothing in the section shall affect the power of the Government to revoke or modify the detention order at any earlier time. It is, in our opinion, diffj.cult to infer from the language of section 1 ~ of the Act that the State Government while confirming the detention order should also sp~ify the period of detention. All that the section requires is that, if the Advisory Board has reported tha!t there is, in its opinion, sufficient cause for the detention of the pers:"ln, the Government may confirm the detention order. There is nothing in the section which enjoins upon the Govemmen.t to specify the period of detention also while con· firming the detention order. The concluding words of sub-section ( 1) of secti()n 12, according to which the Government may con· tinue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consequence of the confirma-tion of the detention order. It is, however, manifest that the period for which a person can be detained after the confinnation of the detention order is subject to the limit of two years, which is the maximum period of detention f6r which a person can be detained, vide section 22 of. the Act.

Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at tbe time of confirming the detention order to soecify the oetiod of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, deoonds upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developmepts and subsequent events in deciding whether to keep the dct;enu in detention for the maximum period or to release him earlier. It has accordingly been provided in sub-section ( 2) of sectio.n. 13 of the Act that the State Government would have the pow« to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detention.

We may also mention in the above context that in the case of Ujagar Singh v. The State of the Punjab(!) this Court, while deal-ing with a case und~ the Preventive Detention Act, held that non-specification of any definite period in a detention order made under section 3 of that Act was not a material omission as would render the order to be invalid.

So far· as the grounds of detention are concerned, it is manifest that the activities of the petitioner menti6ned therein arc germane to the object for which detention can be ordered. Sub-.section ( 1) of section 3 of the Act provides inier aUa that the Government may if satisfied with respect to any P,erson that with a view to preventing him from acting in any manner prejudicial to the security of the State it is necessary so to do make an ordor diroct-Hi,g that such person be detained. The activities of the petitioner mentioned in the grounds of detention show that l 1 ~ was haviB: contact with Pakistan Intelligence Officers and was a:.·~isting thorn in securing vital information rel'ating to Indian .An..". It is obvious that the above activities. of the petitioner imp; .. !,O upon the security of the State. No legal infinnity can con5e(1; .. ently be found in the order for the detention of the ,petitioner which was made with a view to prevent him from acting in any m~.nner pre-judicial to the security of the State.

TI1e petition consequently fails and is dismissed.

OR.IGINAL JURISDICTION : Writ Petition No. 195 of 1972. Under Article 32 of the Constitution of India for the enforce-ment of fundamental ri~hts.

Om Prakash, for the petitioner.

R. H. Dhebar and R. N. Sachthey, for the respondent.