Karam Chand vs The State of Jammu and Kashmir

I.D. Dua, J.—The petitioner, Karam Chand son of Khushi Ram in these proceedings for a writ in the nature of habeas corpus complains that he was arrested on February 9, 1968 without any warrant and has since then been kept in illegal custody. The grounds of detention have also not been communicated to him.

According to the return, Shri Bharat Bushan, I.A.S., Divisional Commissioner, Jammu, had on February 16, 1968, made the following order u/s 3(2) read with Section 5 of the Jammu & Kashmir Preventive Detentign Act, 13 of 1964 for the petitioner's detention:

ORDER No. 3/C/1968 dated 16-2-1968.

Whereas I, Bharat Bhushan IAS, Divisional Commissioner, Jammu an satisfied that with a view to preventing Shri Karam Chand s/o Khushi Ram r/o Chan Gran P/S Kathua from acting in any manner prejudicial to the security of the State, it is necessary so to do:

Now, therefore, in exercise of the powers conferred by Section 3(2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 I, Bharat Bhushan, IAS. Divisional Commissioner, Jammu hereby direct that the said Karam Chand be detained in the Central Jail Jammu subject to such conditions as to maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detinues General Order 1968.

Sd/- Bharat Bhushan IAS Divisional Commissioner, Jammu

On the same day the said officer made another order u/s 8 read with Section 13A of the aforesaid Act directing that the detenue be informed that it is against the public interest to disclose to him the grounds on which his detention order was made. This order is in the following terms:

ORDER No. 4-C of 1968 Dated 16-2-1968.

Whereas Shri Karam Chand s/o Shri Khushi Ram r/o Chan Gran P/S Kathua has been detained in pursuance of order No. 3/C of 1968 dated 16-2-1968 made by me u/s 3(2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, with a view to preventing him from acting in any manner prejudicial to the security of the State; and

Whereas I consider it against the public interest to disclose the grounds of detention to the said Karam Chand

Now, therefore, in pursuance of Section 8 read with Section 13-A of the said Act I hereby direct that the said Karam Chand be informed that it is against the public interest to disclose to him the grounds on which his detention order was made.

Sd/- Bharat Bhushan I.A.S Divisional Commissioner, Jammu.

The contents of both the orders were duly communicated to the petitioner. According to the Divisional Commissioner the papers were thereafter placed before the Chief Minister in charge of the Home Department and the Government duly confirmed the detention order on March 6, 1968. That order reads as under:

GOVERNMENT ORDER NO : ISD-327 of 1968 Dated 6-3-1968

The Government having considered the order of detention made by the Divisional Commissioner vide No. 3/C/1968 dated 19-2-1968 in respect of Shri Karam Chand s/o Khushi Ram r/o Chan Gran P/S Kathua along with his report and the grounds on which the order particulars having bearing on the matter, hereby approve the said detention order.

By order of the Government of Jammu and Kashmir.

Sd/- Secretary to Government Home Department.

In was contended on behalf of the petitioner that non-disclosure of the grounds of his detention to the petitioner is violative of Article 22(5) of the Constitution with the result that his detention must be struck down as illegal. This submission is misconceived Article 35(C) of the Constitution is a complete answer to this challenge. It 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, but any such law shall, to the extent of such inconsistency, 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 period of 15 years mentioned therein has now been extended and the contrary was not contended on behalf of the petitioner.

The submission that non-disclosure of grounds offends Section 8(1) of the aforesaid Act also ignores the proviso added to this Sub-section which reads as under:

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.

The petitioner's detention, as is obvious from the order was directed with a view to preventing him from acting in any manner prejudicial to the security of the State.

In Karam Chand v. State of Jammu & Kashmir (1) it was conceded by the counsel for the detinue that it was competent for the Divisional Commissioner not to furnish the grounds of detention to the detinue. It appears to us that it was the present petitioner who had applied to this Court earlier also and from the records of that case we have verified that the parentage of the petitioner in that case as also the order of detention and the other relevent orders are identical with those in the present case. We are, however, not basing our decision on the ground of rejection of an earlier habeas corpus Petition by the present petitioner because in the return, for reason best known to the respondent, this point was not raised. This petition accordingly fails and is dismissed.