# Abdul Jahar Bil# v. Stat• •f Jamm11 & Kashmir

- **Citation:** [1957] 1 S.C.R. 63
- **Court:** Supreme Court of India
- **Decided:** 1956-06-30
- **Bench:** S. R. Das C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-jahar-bil-v-stat-f-jamm11-kashmir-1365
- **Pages:** 5

## Headnote

BHAGWATI,
VENKATARAMA
AYYAP..,
B. P. SINHA and S. K. DAs JJ.)
Preventive Detention-Decision by Government to continue such
detention-If m1ut be communicated to the detem1e within three months
of the Order of detention-/ammu and Kashmir Preventive Detention
Act (IV of Sambat 2011), s. 14.
Section 14 of the Jammu and Kashmir Preventive Detention
Act does not in terms provide for the making of a formal order and
there is no scope for the contention that the decision of the
Government thereunder that a detention order should be continued
must be communicated to the detenue concerned within three
months of his detention.
Achhar Singh v. The State of the Punjab, Petition No. 359 of
1951, decided on October 22, 1951, applied.
Consequently, where, as in the instant ca5e, the Government
was satisfied that the activities of the detenue were prejudicial to
the maintenance of public order and he should be continued in
detention under s. 14 of the Act, such detention could not be
challenged on the ground that no order under that section had
been made or communicated to him within three months of his
detention.
5-75 S.C. India/59
1956
Abdul Jahar
Bil#
v.
Stat• •f Jamm11
& Kashmir
Das.C.J.
1956
Moham..,.f
Afzal Khan
v.
Stau of Jammu
& Koshmw
64
SUPREME COURT REPORTS
[1957)
OruGINAL
Jurus!lICTION : Petition No. 181 of 1956.
Under Article 32 of the Constitution for a writ in
the nature of Habeas Corpus.
T. R. Bhasin, Amicus Curiae for the petitioner.
M. C. Setalvad, Attorney-General for India, Porus
A. Mehta and R. H. Dhebar, for the respondent.
1956. November 13. The Judgment of the Court
was delivered by
DAs C.J.-This is a petition under Art. 32 of the
Constitution of India praying for an order that the
petitioner's detention be declared illegal and that he be
set at liberty. The facts are shortly as follows :
On June 30, 1954, the petitioner was arrested in
pursuance of an order of detention made on the same
day under the Jammu and Kashmir Preventive Detention Act No. 4 of (Sambat) 2011. On July 1, 1954, the
grounds on which the order had been made were communicated to
the
petitioner.
On July 12. 1954, the
petitioner submitted his representation to the Government. Not having heard anything further in
the
matter, the petitioner made an application to the High
Court of J ammu and Kashmir under s, 491 of the Code
of Criminal Procedure. It appears
that the Government had .reviewed the case of the petitioner under
sub-s. (2) of s, 14 in consultation with a person nominated for the purpose on August 23, 1954, and was
satisfied
that he should
continue
to
be
detained.
Accordingly during the pendency of the habeas corpus
petition before the High Court the Government on
December 23, 1954, made an order under s.
14 continuing the detention of the petitioner. Thereafter the
petitioner moved the Vacation Judge of this Court
under Art. 32. The learned Vacation Judge was not
satisfied that there was any prima facie ground for
interference on the assumption that the Jammu and
Kashmir Preventive Detention
Act
was
valid.
As,
however,
the
constitutionality
of
that
Act
was
challenged the learned Judge directed a Rule to issue.
On September 9, 1955, however, the petitioner, alleging that a certain decision had been made by
the
S.C.R.
SUPREME COURT REPORTS
65
Jammu and Kashmir High Court which covered his
case, asked for permission to withdraw the petition,
which was accordingly dismissed
as
withdrawn. In
the meantime and thereafter the petitioner's case was
reviewed by the Government and orders extending his
detention were made from time to time, the last of
such orders having been made on June 8, 1956.
On
May 25, 1956, he made a second petition before the
Jammu and Kashmir High Court. That petition was
dismissed on June 21, 1956, by the High Court. Thereafter the present petition under Art. 32_ was presented
before this Court on September 26, 1956.
The learned Attorney-General has I aken a preliminary objection that in view of the observations of the
Vacation

## Text

S.C.R.
SUPREME COURT REPORTS
63
There is nothing in the affidavits filed by the respondent showing that there was any particular circumstance or reason for which the declarations could not
have been made earlier than June 30, 1956, when they
were actually made.
For reasons
stated above the
detention of the petitioners became illegal and they
may well complain of having been deprived of their
liberty otherwise than in accordance
with procedure
established by the Act, which embodies the fundamental right guaranteed under Art. 22(5) of the Constitution.
In the premises the petitioners are entitled
to the relief they pray for. We accordingly allow both
the petitions and direct the petitioners to be released
forthwith.
Applications allowed.
MOHAMMAD AFZAL KHAN
v.
STATE OF JAMMU & KASHMIR
(S. R. DAS C.J.,
BHAGWATI,
VENKATARAMA
AYYAP..,
B. P. SINHA and S. K. DAs JJ.)
Preventive Detention-Decision by Government to continue such
detention-If m1ut be communicated to the detem1e within three months
of the Order of detention-/ammu and Kashmir Preventive Detention
Act (IV of Sambat 2011), s. 14.
Section 14 of the Jammu and Kashmir Preventive Detention
Act does not in terms provide for the making of a formal order and
there is no scope for the contention that the decision of the
Government thereunder that a detention order should be continued
must be communicated to the detenue concerned within three
months of his detention.
Achhar Singh v. The State of the Punjab, Petition No. 359 of
1951, decided on October 22, 1951, applied.
Consequently, where, as in the instant ca5e, the Government
was satisfied that the activities of the detenue were prejudicial to
the maintenance of public order and he should be continued in
detention under s. 14 of the Act, such detention could not be
challenged on the ground that no order under that section had
been made or communicated to him within three months of his
detention.
5-75 S.C. India/59
1956
Abdul Jahar
Bil#
v.
Stat• •f Jamm11
& Kashmir
Das.C.J.
1956
Moham..,.f
Afzal Khan
v.
Stau of Jammu
& Koshmw
64
SUPREME COURT REPORTS
[1957)
OruGINAL
Jurus!lICTION : Petition No. 181 of 1956.
Under Article 32 of the Constitution for a writ in
the nature of Habeas Corpus.
T. R. Bhasin, Amicus Curiae for the petitioner.
M. C. Setalvad, Attorney-General for India, Porus
A. Mehta and R. H. Dhebar, for the respondent.
1956. November 13. The Judgment of the Court
was delivered by
DAs C.J.-This is a petition under Art. 32 of the
Constitution of India praying for an order that the
petitioner's detention be declared illegal and that he be
set at liberty. The facts are shortly as follows :
On June 30, 1954, the petitioner was arrested in
pursuance of an order of detention made on the same
day under the Jammu and Kashmir Preventive Detention Act No. 4 of (Sambat) 2011. On July 1, 1954, the
grounds on which the order had been made were communicated to
the
petitioner.
On July 12. 1954, the
petitioner submitted his representation to the Government. Not having heard anything further in
the
matter, the petitioner made an application to the High
Court of J ammu and Kashmir under s, 491 of the Code
of Criminal Procedure. It appears
that the Government had .reviewed the case of the petitioner under
sub-s. (2) of s, 14 in consultation with a person nominated for the purpose on August 23, 1954, and was
satisfied
that he should
continue
to
be
detained.
Accordingly during the pendency of the habeas corpus
petition before the High Court the Government on
December 23, 1954, made an order under s.
14 continuing the detention of the petitioner. Thereafter the
petitioner moved the Vacation Judge of this Court
under Art. 32. The learned Vacation Judge was not
satisfied that there was any prima facie ground for
interference on the assumption that the Jammu and
Kashmir Preventive Detention
Act
was
valid.
As,
however,
the
constitutionality
of
that
Act
was
challenged the learned Judge directed a Rule to issue.
On September 9, 1955, however, the petitioner, alleging that a certain decision had been made by
the
S.C.R.
SUPREME COURT REPORTS
65
Jammu and Kashmir High Court which covered his
case, asked for permission to withdraw the petition,
which was accordingly dismissed
as
withdrawn. In
the meantime and thereafter the petitioner's case was
reviewed by the Government and orders extending his
detention were made from time to time, the last of
such orders having been made on June 8, 1956.
On
May 25, 1956, he made a second petition before the
Jammu and Kashmir High Court. That petition was
dismissed on June 21, 1956, by the High Court. Thereafter the present petition under Art. 32_ was presented
before this Court on September 26, 1956.
The learned Attorney-General has I aken a preliminary objection that in view of the observations of the
Vacation Judge as to the merits of the case referred to
above the present petition in so far as it raises any ques.
tion other than the constitutional point was not maintainable. Shri T. R. Bhasin, who has assisted us in this
matter as amicus curiae, draws our attention to a fresh
petition filed by the petitioner and assures us that he
does not desire to raise any of the questions of fact
raised in the first petition, which had been withdrawn,
but will. confine his arguments to the new points of
law raised in the supplementary petition. In view of
the fact that this petition is concerned with the liberty
of a subject, we have considered it right to hear Shri
T. R. Bhasin on the new points sought to be raised by
him.
Shri T. R. Bhasin raises two points, namely :-
( 1) that the detention has become wrongful and
illegal inasmuch as the order under s. 14 was not made
before the expiration of a period of three months after
the order of detention; and
(2) that the second ground of detention is wrong
inasmuch as the Chief Secretary has admitted that
there is no such hotel as Guest House hotel at Amira
Kadal, where the detenue is alleged to have attended
a meeting therein referred to.
·
The second point was raised on account of the typographical error in the copy of the Chief Secretary's
affidavit, which was available to the learned counsel.
Stall of Jammu
& Kashm#.
Das C.J.
v.
Stole of Jammu
& Ka.shmir
Das C.J.
66
SUPREME COURT REPORTS
[1957]
In point of fact the Chief Secretary has maintained
that there is a Guest House hotel at Amira Kadal. The
original affidavit having been shown to the learned
counsel, he has abandoned the second point.
He,.
however, presses the first point.
Learned counsel draws our attention to Art. 22 ( 4) of
the Constitution. That clause lays down that no law
providing for preventive detention shall authorise the
detention of a person for a longer period than three
months except in the circumstances therein specified.
Suh-cl. (b) makes it quite clear that cl. ( 4) does not
apply to a person who is detained in accordance·
with the provisions of any law made under sub-els. (a)
and (b) of cl. (7) by Parliament, which in the case
of Jammu and Kashmir has been substituted by the
word 'legislature of the State' by the Constitution
(Application to Jammu and Kashmir) Order, 1954,
made by the President. The question is whether the
petitioner's detention has been properly continued beyond the period of three months by virtue of the pre>-
visions of s. 14 of the Jammu and Kashmir Preventive
Detention Act.
Shri T. R. Bhasin maintains that an order must be
made under s. 14 before the expiry of the period · of
three months after the date of the order of detention.
Turning to s. 14 we find that it does not in terms
provide for the making of any formal order. It only
says that notwithstanding anything contained in the
Act any person detained under a detention order made
in any of the two classes of cases 'may' be detained
or continued in detention without obtaining the opinion
of an Advisory Board for a period longer than three
moriths. There is no specific provision in the section
for making any order or even such a declaration as is
contemplated by the proviso to s. 8(1). Shri T. R. Bhasin
t!1en contends that at any rate the word used being
'may' it implies that the Government must make up
its mind and when the Government so makes up its
mind to deal with the petitioner's case under s. 14, the
fact of such decision should be communicated to the
pcttt10ner.
In point of fact we find that the Government had appointed Shri A. H. Durani for purposes of
S.C.R.
SUPREME COURT REPORTS
67
<:onsultation under s. 14(2) on August 23, 1954, which
was within two months from the date of the order of
detention. It is, therefore, clear on the record that the
Government had come to a decision with regard to this
particular detenue against whom the order of detention
was made on the ground of his activities being prejudicial to the maintenance of public ordt:r that he should
be dealt with under s. 14 and that his case should not
go to the Advisory Board. We see no warrant for the
contention that this decision of the Government must
be communicated to the detenue. It has not been
shown how the communication of this decision would
have been beneficial to the detenue. Indeed in the case
of Achhar Singh v. The State of Punjab( 1) this Court has
expressed the opinion that the omission to convey the
Jrder made under s. 11 of
the
Indian Preventive
Detention Act does not make the detention illegal or
result in infringement of the petitioner's fundamental
right. If that be the position under s. 11 of the Indian
Preventive Detention Act, which provides
for
the
making of a formal order, all the more must the
position be the same under s. 14 of the Jammu and
Kashmir Preventive Detention Act, which docs not in
terms require any formal order to be made. In our
opinion there is no substance in this application, which
must accordingly be dismissed.
Application dismissed.
_-
(1) Petition No. 3.;9 of 1951, decided on October 22, 1951,
i956
Mohammad
A.fr.al Klian
v.
Stall of Jamrm1
& Kashmir
DasC.J.