Parmanand vs State

(1) This is a petition for issue of a writ of Habeas Corpus by one Parmanand challenging the detention of his son Hans Raj who was directed to be

detained by the District Magistrate, Jammu, vide his order No. 10/PDA/70/16 dated June 25, 1970.

(2) Appearing on behalf of the detenue Mr. Gupta urged that neither the order of detention nor the order declaring that it would be against public

interest to disclose to the detenue the grounds on the basis of which the detention order was made, was communicated to his client. It was further

submitted on behalf of the detenue that no opportunity to make a representation against the order of detention was furnished to him and that in the

circumstances the detention could not held to be legal. At the request of Mr. S. P. Gupta an opportunity to file an additional affidavit in support of

his first submission was allowed to him. Accordingly he filed an affidavit of the detenue averting interalia that no warrant of arrest or detention was

served on him, that he was detained in the Additional Police lock up Jammu by the police and forced to put his signatures at four places, that the

contents of the documents on which his signatures were obtained were not read out and explained to him and even on his inquiry about the

contents of the documents he was threatened and tortured.

(3) The learned Additional Advocate General appearing on behalf of the State has besides producing the original order Nos. 1/PA/70/16 and 10/

PA/1970/7 dated June 25, 1970 of the District Magistrate, Jammu, filed two counter affidavits one of Shri Varender Kumar Sharma.

SubInspector of Police, Station House officer, Police Station, Ramgarh, Tehsil Samba, who served the first order and of Shri Jagmohan Dhar

Inspector of Police CID, in charge, Additional Police Lock Up attached to police Station, Jammu who served the second order on the detenue.

Both these officers have affirmed that they read out and explained the contents of the orders, the service of which was entrusted to them. These

officers have also testified to the correctness of the endorsements made by them respectively on the reverse of the aforesaid two orders. They have

further affirmed that in token of his having heard and understood the contents of the orders, the detenue put his signatures on the reverse of these

orders without use of any force, coercion, or undue influence. In the circumstances, I find myself unable to accede to the submission of Mr. S. P.

Gupta that neither .the order of detention nor the order withholding the grounds was read out to his client.

(4) I am also unable to accede to the further submission made to me on behalf of the detenue that since no opportunity to make representation

against his order of detention was Afforded to him, the detention is illegal. It is true that S c. 8(1) of the Jammu and Kashmir Preventive Detention

Act requires the detaining authority not only to communicate the grounds of detention to the detenue within ten days from the date of his detention

but also to afford him the earliest opportunity of making a representation against the order to the government but both these rights appear to have

been taken away from a person detained with a view to prevent him from acting in a manner prejudicial to the security of the State, if the detaining

authority passes aid communicates to him an order that it would be against public interest o disclose the grounds of detention to him This would be

clear from a perusal of section 13A (2) (b) of the Act which was inserted by the Jammu and Kashmir Preventive Detention (Amendment) Act,

1967. Which reads as follows .

(b) in subsection (1) of Section 8.

(i) X X XX XX

(ii) The following proviso shall be inserted at the end namely :

Provided that nothing in this subsec* 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.

(5) The opening words of the proviso namely ''provided that nothing in this subsection 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"" are full 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.

(5) The opening words of the proviso namely ""provided that nothing in this subsection 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"" are full 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.

(5) The opening words of the proviso namely ''provided that nothing in this subsection 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"" are full of significance. They totally deprive the detenue who is

detained for reasons of the security of the State, of the right of being furnished with the grounds of detention as also of the right of being afforded

an opportunity of making a representation against the detention order to the government if the authority making an order of detention by the same

or subsequent order directs that the person detained may be informed that it would be against public interests to communicate to him the grounds

on which the detention has been made. It is also beyond doubt that the provisions of the Jammu and Kashmir Preventive Detention Act, even

though inconsistent with the provisions of Chapter III of the Constitution are immune from challenge. This would be clear by a reference to Article

35 (c) of the Constitution as applied to the State by the Constitution (Application to Jammu and Kashmir) order, 1954, made by the President of

India on may 14, 1954. In a recent decision of the Supreme Court in Talib Hussain v. The State of Jammu and Kashmir, 1970, Criminal Appeal

reporter, 446, Hon'ble Dua J. observed as follows :

It is clear that by virtue of the provisions of S 13A (2) (b) (u) of the J & K Preventive Detention Act, S 8 (1) of that Act, by virtue of S. 13A (2)

(c), S. 10 of that Act were both inapplicable to this case (which relates to the persons detained with a view to prevent him from acting in a manner

prejudicial to the security of the State). These provisions merely serve to demonstrate that the question of security of the State is of paramount

importance and is placed above the right to personal liberty of an individual whose activities are a danger to such security. Activities prejudicial to

the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising out of such activities, the right of

individuals have to be postponed to the larger considerations of the State.''

(6) From the above observations it clearly follows that the fundamental right of personal liberty, though precious has been subordinated to the

larger interests of the security of the State which occupies a very vulnerable position.

(7) A view identical to the one taken by me also appears to have been taken by JalaludDin J. in applications Nos. 23 and 36 of 1969, Mohamad

Ashraf Manhas v. State of Jammu and Kashmir and anr. and Ghulam Qadir Basmati v. State of Jammu and Kashmir.

(8) Thus both the contentions raised by Mr. Suraj Prakash Gupta fail. Accordingly I find no merit in this petition which is dismissed.