Abdul Hamid Hajam vs State of J & K

Abdul Hamid Hajam has challenged his detention ordered for a period of twenty four months by District Magistrate, Pulwama, vide his order

No. 38/DMP of 1997, dated 03041997.

The facts and circumstances relevant and necessary for our present purpose are that the petitioner was arrested on 14091996 in FIR No. 288

of 1996 under Section 3/25 I A Act, registered at Police Station, Shopian. He was bailed out by the District and Sessions Judge, Pulwama on

180297. Petitioner was released from Central Jail, Srinagar in the case on 1921997. Soon after the accused came out of the jail, the concerned

Police wanted to rearrest him and he was given to understand that his detention has been ordered under Public Safety Act by the District

Magistrate, Pulwama on 03041997, vide above referred order of detention. Petitioner managed to get a copy of the detention order, placed on

record, as Annexure P3. This order is challenged on available factual and legal grounds covered by Article 21 and 22 of the Constitution of India

and the provisions of Jammu and Kashmir Public Safety Act, 1978

The challenge to the legality of the detention order is in main based on nonapplication of mind on the part of detaining authority, failure to serve

the order of detention and grounds of detention and deprivation of opportunity of making representation against the detention to the Government.

The respondents have consciously and despite due service and appearance through Mr. R. A. Khan, G. A. failed to file counter.

Mr. R. A. Khan, G. A, is submitting that the Habeas Corpus petition under Article 226 in its present form is not maintainable, so long the

accusedpetitioner does not surrender or is not taken in custody. This petition is not maintainable. He has referred to an order passed on 16101998

in OWP No:463 of 1998, wherein, a Single Bench of this court has on the ratio of another Bench judgment given in Cr. Misc. petitioner No.

12/88 in H.C. Petition 204/ 88 dismissed the petition on the ground, that the petitioner in that petition had not surrendered. The two petitions

above referred by the Hon'ble Single Bench are reported cases with citation as KLJ 1988 J and K 462 (Vol. XXVII>=SLJ 1988 J and K 270,

referred hereafter at a latter stage.

The counsel for the petitioner has canvassed .that as the personal liberty of the petitioner is under invasion, therefore, the petitioner has a right to

approach the court to challenge the order of detention in terms of rights guaranteed under Article 21 and 22 of the Constitution. He has referred to

1988 SLJ: 270. He has also referred to a Single Bench judgment dated 29798 of this court in OWP No. 270/98.

Article 21 lays down that: No person shall be deprived of his life or personal liberty except according to procedure established by law, while

Article 22 enshrines protection against the arrest in respect of the preventive detention as under:

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court, has reported

before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this

subclause shall authorise the detention of any person beyond the maximum period prescribed by any law made by parliament under subclause (b)

of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under subclause (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order

shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity

of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority

considers to be against the public interest to disclose"".

(7) Parliament may by law prescribe

(a) The circumstances under which and the class or classes of cases in which, a person may be detained for a period of longer than three months

under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of

subclause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention;

and

(c) the procedure to be followed by an Advisory Board in an inquiry under subclause (a) of clause (4).

Reference to the law made by the Parliament in Clause 7 is in case of the State of Jammu and Kashmir, reference to the legislature of the J and K

State. In other words in the State of Jammu and Kashmir, the State Legislature would be deemed to be the law making body to provide for

matters referred to in above subclause (a) (b) and (c) of clause 7. The State Legislature has enacted the law, known as the Jammu and Kashmir

Public Safety Act, 1978 (hereinafter Act), providing for preventive detention.

Chapter IV of the Act vests powers with the Government its named officers to order preventive detention Section 8, which among other things

include ordering of detention to prevent a person from acting in any manner prejudicial to the security of the State or maintenance of the Public

order. Section 13 of Act provides, that if a person is detained pursuant to order of detention, then the authority making the detention shall within

the stipulated time period and on conditions provided in section, communicate the grounds on which the order is made to the detenue and the time

period ranging from 5 days to 10 days within which the grounds are to be communicated, is expressly stated to commence ""from the date of

detention"". The detenue shall be afforded opportunity of making representation against the order of detention to the Government.

Section 16 of the Act, provides, that the Advisory board constituted under Section 14 of this Act, shall on reference of the case of the detention

after following the due procedure, submit its report to the Government within eight weeks from the ""date of detention"".

Section 18 of the Act again provides, that a detention order confirmed under section 17 of the Act by the Government (on report of the Advisory

Board) shall be at the most for a period of two years from the ""date of detention"", in case of a person detained to prevent him from acting in any

manner prejudicial to the security of the State.

On reference and examination of the above provisions of the J and K Public Safety Act, it is clear that a detained person has a right to have the

grounds of detention within stipulated period from date of his detention. The Advisory Board has also to give its opinion and report as to the

sufficiency or otherwise of the grounds of detention within stipulated time period (eight weeks) 'from the date of detention'. The maximum period of

detention in case of person detained to prevent such person from acting in any manner prejudicial to the security of the State is again 24 months

from the date of detention. It is obvious that the whole scheme of the Act, shows that the person has to be delivered the grounds for his detention

within the prescribed period to commence from the 'date of his actual detention'. He has right of representation before the Board and the Board is

to give its opinion again within the stipulated time period from' the date of detention'. The period of detention commences from 'date of detention'.

All these mandatory provisions of the J and K Public Safety Act, have to be complied with and if any of the provisions is not satisfied or

complied with, the detention under the order will be void. Obviously, in such cases the detention is arbitrary and not legal. The point of time for

compliance of these provision (Ss 13,16,18) is the date of detention. On otherwords actual detention, may be on surrender or arrest is a

precondition or basis for compliance with the above provisions of Public Safety Act.

Contextually, in the light of whatever is stated herein above, it is obvious that the basis of a H.C.Writ, postulates the detention of the person

concerned. The legality or otherwise of the detention is to be judged and ruled at the time of the return and not with reference to the date of filing of

the petition, so long the person is not detained, it cannot be said that the order of detention or the grounds therefor are served on the petitioner.

Service of grounds is in fact visualized by the Act only when the person is actually taken in custody and detained.

The question whether writ of Mandamus is maintainable before a person has been detained and served with the order of detention, was

examined by a Full Bench of the Gujrat High Court in Ved Parkash Devkinandas Cheripal and others case. (AIR 1987, Guj. 253).

After appraisal of some decision of the Hon'ble Supreme Court and High Courts of Bombay and Gujrat, the Court observed:

from the foregoing discussion, it is clear that a detenue cannot ordinarily seek a writ of mandamus in cases where he has not surrendered nor

has been served with an order of detention and he cannot ordinarily invoke the jurisdiction of the High Court under Art. 226 of the Constitution.

But in exceptional cases and in rarest of rare cases wherein the order of detention appears to be abinitio void, the detenue, can invoke the

jurisdiction of the High Court under Act.226 of the Constitution even before he surrenders and even before the order of detention is served upon

him, subject to the limitations indicated in this judgment.

The court further answered the raised questions in terms as under:

Let us now take stock of the situation emerging from the above discussion.

(1) In a writ of mandamus for quashing an unserved detention order, a detenue cannot be granted any stay of detention pending the petition filed by

him,

(2) Pending such petition the Court also cannot call for the grounds of detention and review the same since it will go against the procedure

established by law;

(3) the court cannot also investigate the facts of the case nor look into the grounds at this preliminary stage when the detenue approaches the Court

even before he receives the order of detention and surrenders in view of such detention order, and,

(4) a petition of this nature must come to an end once the respondent states on oath that the order of detention is validly passed against the person

concerned. Subject to the above limitations, we are of the view that a writ of mandamus is maintainable even at the preliminary stage of the

detention order, before it is served on the proposed detenue"".

In the case of Muganbhai case, (AIR 1969, SC: 783) the Apex court observed that, a writ of mandamus, at the instance of a party whose freedom

and liberty is directly or substantively invaded or is imminently in danger of being invaded, may be issued by the courts.

The view of the Bombay High Court in the matter has been, that the writ petition is maintainable, even if the detenue had not surrendered as

per the detention order, where the illegal detention is challenged before the Court, (Cr. writ petition 622/1982). However, the observations made

in the above cases, have to be understood in the context of constitutional scheme and limitations imposed by law. The court has to perform the

balancing act of reconciling the conflicting interests of the individual's liberty and interests of the nation and the society as a whole.

Keeping in view the above discussions and circumstances, it cannot be said that a petition under Article 226 would lie in all cases before the

order of preventive detention is executed and the person is detained under the order. After all the procedure established by law has to get the

prominence and has to be given effect. No person/party can be allowed to circumvent the same by invoking the jurisdiction of the court. If the

detenue who is free and absconding is allowed to be the beneficiary of examination of the grounds of detention by the court, even before he

surrenders, it will encourage the concerned to flout the procedure established by law. Examination of grounds when detenue is evading arrest

would aid and encourage those who want to avoid their detention. After all the interests of the society have to be balanced while keeping in view

the liberty of an individual. Still the court cannot refuse to interfere in case where the detention is abinitio void and the voidness of the order could

be found without embanking on scanning of the grounds of detention.

In OWP No. 463/1998, while passing the order of dismissal of the petition on 16101998, the Hon'ble Single Bench has not given out the

reasons, except referred .to the ratio laid in Cr. Misc. petition No. 12/88 and in Habeas Corpus petition No. 204/88.

In the judgment dated 29071998, in OWP No: 207/98, handed down by me, it is not construed to mean that in every case where the person

is not detained or the detenue does not surrender to the custody, writ of Habeas Corpus or Mandamus, can be issued when the contention of

nonmaintainability of the writ petition was overruled. In the facts and circumstances of that case, the court meant only to lay down that a writ of

mandamus, could lay even before the person detained is arrested or taken in custody or surrenders, in cases where the order of detention is void

abinitio. Such a situation can be visualised in cases where a person, not authorised by the provisions of Public Safety Act, orders detention or

where detention is ordered for a purpose not specified in section 8 of Public Safety Act, or where an order of detention is ordered in violation of

the mandatory provisions of the Public Safety Act. The decision in the above case (OWP 207/98) has to be understood only in that context and

not as a general rule that in all cases, where a person ordered to be detention under Public Safety Act, can challenge his detention, even before he

is taken into preventive custody or surrenders pursuant to orders of detention. All this not finding place expressly in the final order of the case, the

decision in the above case can be treated to an extent as a decision per incuriam.

In KLJ, 1988,J and K:462(VOLXXVII), a Division Bench of this court, while pronouncing on powers of High Court to grant interim bail or

exercise of discretion for grant of interim relief in a case where a person is ordered to be detained under provisions of Public Safety Act, a position

with which this court is not confronted in this case, the Hon'ble Mr. Justice M.L. Bhat, speaking for the court observed:

In a petition of mandamus, before service of order of detention, court will not be within its powers to ask the detaining authority to produce the

grounds of detention. It is only when the detention order is abinitio void that the court can dispense with the detailed enquiry and declare it so

without going into the grounds of detention order has been served and the detenue has surrendered in pursuance of the detention order. In

anticipation of service of detention order, High Court has no power to look into the grounds of detention or detention order.

For the above reasons and on consideration of the matter, in the facts and circumstances of this case, this writ petition is not maintainable, as

the court cannot scane the grounds and inquire into the facts and circumstances of the case, when the detenue is free as he has not been detained

pursuant to the detention order and has even failed to surrender and the order grounds have not been served on him in accordance with the

procedure established by law.

In the result, petitioner's failure to surrender and his act of evading the detention under the order of detention brings the petition to an end. The

order of detention is not averred/ alleged to be abinitio void. Accordingly disposed of