Ammar Nath and Others vs District Magistrate

Jaswant Singh, J.—These are four petitions u/s 103 of the State Constitution praying for issue of writs in the nature of habeas corpus

directing the release of the petitioners who are said to be unlawfully detained in the Central Jail, Jammu. As the petitions raise common questions of

law these will be dealt with together.

The petitioners in the first three petitions viz., Ammar Nath son of Des Raj, Tilak Raj. and Manohar Nath Tikku were arrested on the 8th

October 1967 in execution of the orders of the District Magistrate Jammu passed by him u/s 3(a)(i) of the Jammu and Kashmir Prevenventive

Detention Act, 1964 directing the detention of the petitioners in the Central Jail, Jammu, with a view to preventing them from acting in any manner

prejudicial to the maintenance of public order. The fourth petitioner, Ammar Nath son of Faqir Ohand was arrested on 21.10.67 in pursuance of

an order passed for the same reason by the District Magistrate Jammu on the same date under the same provision i.e. Section (3)(a)(i) of the said

Act. As appears from the affidavit of the Home Secretary to the Government of Jammu and Kashmir, the fact of detentions of the petitioners in the

first three petitions together with the grounds on which the orders were made was communicated to the Government vide District Magistrate's

reports dated 16th October 1967, The grounds of detention appear to have been served on these detenus on the 17th October 1967. The orders

of detention in respect of these petitioners were approved by the Government on the 28th October 1967, So far as Ammar Nath son of Faqir

Chand is concerned the grounds of his detention bearing date 28th October 1967 were served on him on 29th October 1967, and the fact of his

arrest and detention together with the grounds thereof was reported to the Government on 2nd November 1967. In this case, the approval of the

Government to the order of detention was accorded on the 11th November 1967.

Mr. Ram Nath Bhalgotra appearing for the petitioners has challenged the legality of the detentions of the petitioners on two grounds. In the first

place, it has been urged by him that the fact of the detentions has not been reported to the Government in time as required by Section 3(3) of the

Preventive Detention Act, 1964. The next contention of the learned Counsel for the petitioners is that the grounds set out in Para. 3(d) of the

grounds served on Ammar Nath son of Des Raj, grounds set out in sub-paras. (a), (b) and (c) of Para. 3 of the grounds served on Tilak Raj,

grounds set out in sub-paras (e), (f) and (g) of Para. 3 of the grounds served on Manohar Nath Tikku and grounds set out in sub-paras, (c), (d),

(e), (f), (g), and (i) of para 3 of the grounds served on Ammar Nath son of Faqir Chand are vague and irrelevant.

For a proper appreciation of the first contention raised by the learned Counsel for the petitioners the provisions of Section 3(3) of the Preventive

Detention Act, Act No. XIII of 1964, may be reproduced for facility of reference. The said Section reads as under:

When any order is made under this Section by an officer mentioned in Sub-section (2) be shall forthwith report the fact to the Government together

with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order

shall remain in force for more than twenty-four days after the making thereof, unless In the meantime it has been approved by the Government.

It would appear from a perusal of the aforesaid Sub-section (3) of Section 8 of the Act, that the fact of the order of detention and the grounds

there, for have to be reported to the Government forthwith. The word ""forthwith""; occurring in the provision is of great significance. In Keshav

Nilkanth Joglekar Vs. The Commissioner of Police, Greater Bombay, , their Lordships of the Supreme Court interpreted the word ""forthwith"" as

meaning ""with all reasonable speed and expedition and without avoidable delay."" Their Lordships further held that ""when an act is done after an

interval of time and there is no satisfactory explanation forthcoming for the delay, it cannot be held to have been done forthwith"". Their Lordships

further observed that the word ""forthwith"" cannot mean the same thing as ""as soon as may be.

The reports u/s 3(3) of the Preventive Detention Act, 1964, should have, according to this ruling, been Bent to the Government at the earliest

point of time. It has now to be been whether the requisite reports in these cases were sent to the Government within the time postulated by the

Statute and if not whether the delay in sending the reports could have been avoided.

When the petitions came up for hearing before me on the 15th December 1967, no material was placed before me to explain the delay in

sending the reports. It was, however stated by the Deputy Advocate General appearing for the respondent that the said reports could not be

submitted earlier by the District Magistrate, Jammu, than the dates set out above due to the tense situation prevailing in Jammu and the

preoccupation of the District Magistrate Jammu in controlling the situation. Daring the coarse of arguments, the learned Deputy Advocate General

requested for 15 days adjournment to enable him to file an affidavit of Mr. R.K. Takkar, District Magistrate, Jammu. to explain the delay. This

request for such a long adjournment was disallowed by me, I, however, permitted him to file before the Deputy Registrar of the Court by 12 A.M.

of the 16th December 1967 any document showing the reasons for the delay occasioned in submission of the said reports. On that date the

Deputy Advocate General appears to have filed before the Deputy Registrar of this Court separate but common affidavit of Shri Sarup Singh,

Head quarter Assistant to the District Magistrate, Jammu, in each of the first three petitions stating inter alia:

That consequent upon the Agitation launched by the Kashmiri Pandits protesting against the alleged abduction of a Hindu girl namely Permeshwari,

an Action Committee was also formed in Jammu which indulged In a large scale lawlessness as a result of which the law and order situation in

Jammu became very serious in the month of August and continued to be tense till the end of October 1967. In particular the said agitation took a

serious turn in the last week of August 1967, when there occurred some cases of looting and burning the property of the minority community.

Consequently the authorities particularly the District Magistrate who had all along remained engaged in controlling the law and order situation had

to be over cautious and on their alert on every occasion when there arose any apprehension of the disturbance of public peace. That on 7th

October 1967 the law and order situation deteriorated all the more when the Jan Sangh held a demonstration in front of the Youth Hostel and

indulged in serious activities of lawlessness, violence and arson. The worsening situation after the said incident necessitated the promulgation of an

order u/s 144, Criminal P.C. for a period of fifteen days with effect from 8.10.67 and engaged the District Magistrate round the dock in making

elaborate and foolproof arrangements be that the situation could be kept well control. The Dussureah celebrations held on the 19th October 1967

added to the otherwise deteriorated law and order situation in the city of Jammu and the District Magistrate remained busy in taking precautionary

measures all throughout.

That due to the said abnormal conditions prevailing in Jammu city the District Magistrate remained extremely busy all throughout in maintaining law

and order and in such unusual and tense situation it was not possible for him to make the necessary report to the Government in respect of the

petitioner's detention earlier than the day on which it was made.

In case of the fourth petitioner Ammar Nath eon of Faqir Chand, the Deputy Advocate General likewise filed an affidavit of Shri Sarup Singh

Head Quarter Assistant to the Distriofr Magistrate, Jammu, stating inter alia that the District Magistrate was too much engaged with the

maintenance of public peace and tranquillity immediately after 21.10.1907 upto 1st of November 1967 and could not find time to draw up tbe

necessary report, that the situation was aggravated by the students of Polytechnic Jammu who went on strike and indulged in processions and

public meetings.

It will thus be seen that it is not denied that the reports as required by Section 3(3) of then Preventive Detention Act have not been submitted in

time. The delay in the submission of the report is, however, sought to be attributed to the tense situation said to be prevailing in Jammu and the

engagement of the District Magistrate Jammu in connection therewith. The material placed to explain the delay is not, however, satisfactory. There

is nothing in the affidavit of the Home Secretary to show that the situation in Jammu was so bad as to prevent the District Magistrate Jammu from

attending to his normal duties. The reports made by the District Magistrate Jammu to the Government have also not been placed before the Court.

If the District Magistrate was prevented from making the reports on account of certain acts of lawlessness on the part of the certain individuals or

organisations, one would have expected the District Magistrate to record the reasons for the delay in the reports themselves submitted by him to

the Government. An affidavit of the kind referred to above cannot in my opinion, be deemed to be adequate in the eye of law. In regard to the

reports required to be made to the Government in respect of the detention of the first three petitioners it may be observed that in the affidavit of

Shri Sarup Singh, no untoward incident is alleged to have taken place after the 7th October 1967, i.e. on the 8th, 9th, 10th, 11th and 12th of

October 1967. At any rate there is nothing to explain the delay from the 18th to the 15th of October 1967.

As retards the case of Ammar Nath son of Faqir Chand it may be mentioned, that there is nothing even to show that the order u/s 144, Criminal

P.C. was extended beyond 23rd October 1967. Another thing worth noticing in this case is that the grounds of detention which, are dated 28th

October 1967 have been served on the detenu on the 29th October 1967. If the grounds could have been served on the detenu on the 29th

October 1968, there could have been no reasonable cause to prevent the District Magistrate from making the report to the Government on the

same date i.e. the 28th October, 1967. The reports, as already stated, could have been the best evidence of the reasons which prevented the

District Magistrate from communicating the facts of detention to the Government' earlier, and the Deputy Advocate-General could by reference to

the reports have explained the delay but the reports have scrupulously been kept back. This, not having bees done, the delay of 8 days in the first

three cases and of 11 days in respect of the fourth ease has not been satisfactorily explained.

It is now well settled that every step in the process leading to the detention of a detenu must be strictly followed. As the safeguards provided by

Sub-section (3) of Section 3 of the Preventive Detention Act, 1964, have not been complied with and the delay in the submission of the I report

under the said provisions baa not been satisfactorily explained, the detention of the petitioners cannot be held to be in accordance with the

procedure established by law within the meaning of Article 21 of the Constitution.

In view of the conclusion arrived at by me, in respect of the first contention, raised by the learned Counsel for the petitioners, it is not necessary

for me to go into the other contention raised by the learned Counsel for the petitioner namely the vagueness and irrelevancy of the grounds.

la the result, I accept the petitions and direct that the petitioners shall be set at liberty forthwith, unless they have to remain in custody under

some other order of a competent Court or authority.