# cases of the were Baroda Borouglr . Municipalitp v. Its Workmen S. K. Das]. November

- **Citation:** [1957] 1 S.C.R. 51
- **Court:** Supreme Court of India
- **Decided:** 1955-11-23
- **Bench:** S. R. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cases-of-the-were-baroda-borouglr-municipalitp-v-its-workmen-s-k-das-november-1354
- **Pages:** 13

## Headnote

BHAGWATI,
VENKATARAMA
AYYAR.
B. P. SINHA and S. K. D11.s, JJ.)
Preventive Detention-Legality-Time prescribed for communicating grounds of detention to the dett•nue-·As soon as may be',
Meaning of-Declaration enabling· withholding of such mmm1111ication, if must be made by Government 1,efore expiry of ..-11<.'1 time-
/ammu and Kashmir Preventive Dcte11tio11 Act (JV of Sam hut '21!1 l),
s. 8(1 ), Proviso.
The two petitioners were detained under s. 3( I) of the Jam mu
and Kashmir Preventive Detention Act on April 26, I<)';\ with a
view to preventing them from acting in a manner prcjudicinl to
the security of the State.
No grounds were communicated to
them under s. 8( I) of the Act and no declarations """e made
under the proviso of that section.
The petitioners applied to the
High Court under s. 491 of the Code of Criminal Procedure and
•foring the pendency of those applications, on June 30, 1956,
declarations under the proviso were made by the Government to
the effect that it would be against the public interest to communicate to the petitioners the. grounds on which the orders of detention
~-
had been made against them. On July 28, 1956, the High Court
rejected
the
applications.
The
cases
of
the
petitioners were
Baroda Borouglr .
Municipalitp
v.
Its Workmen
S. K. Das].
November
13
19!;6
Abdul Jabar
Butt
v.
Gtau of Jammu
& Kt11hmir
52
SUPREME COURT REPORTS
(1957]
reviewed by the Government under s. 14(2) of the Act in consultation with a person nominated for that purpose on June 4, 1956,
and it was satisfied that the petitioners should continue to be
detained and, accordingly, passed orders to that effect under s. 14
of the Act on September 26, 1956.
The question was whether
the declarations were made within the_ time prescribed by s. 8( 1)
of the Act for comn1unicating the grounds of detention and, if not,
whether the petitioners had 'been lawfully detained.
Held, that the expression 'as soon as may be' in sub-s. (I)
of s. 8 of the Ja1nmu and Kashn1ir Preventive
Detention Act,
whereby the Act prescribed the time within which the Govern1nent must comn1unicate to the detenue the grounds
of
his
detention, meant within .a reasonable time, with the understanding
to do the act \vithin the shortest possible tin1ei from the date of
detention.
King's Old Country, Ltd. v. Liquid Carbonic Can. Corpn. Ltd.
(1942) 2 W.W.R. 603, followed.
Uiagar Singh v. The State of the Punjab, [1952] S.C.R. 756 and
Keshab Nilkanth foglekar v. The Commissioner of Police, Greater
Bombay, Petition No. 602 of 1956, decided on September 17, 1956,
referred to.
Although it might not be possible in many cases to con1pute
the span of time thus indicated by hours, days or months, what
was possible and the Court had to do in the facts and circum·
stances of each particular case, was to find whether the act was or
was not done within the time which was reasonably convenient
or reasonably requisite.
The proviso to the sulrsection clearly implied that the power
it vested in the Government to exclude from the operation of the
sub·section a:rtain class of
detenues by
making the required
declaration, must be exercised and such declaration made before
the exi)iry of the time prescribed by the sub.section for communi·
eating to the detenuc the grounds on which the detention order
against him had been made.
Hissam-VJ-Din Battdy and Others v. The State, A.LR. 1955
J. & K. 7, overruled.
Consequently, as in the instant cases the affidavits filed on
behalf of the Government disclosed no particular cjrcumsrancc or
reason why the declarations under the proviso could not have
been made before more than two months had elapsed fro1n the
dates
when the
orders of detention had become effective,
the
detenues must be held to have been
deprived of their liberty
otherwise than in accordance with the procedure established
by
the Act, embodying as it <foes the fundamental right guaranteed
under Art. 22(5) of the Constitution of India, and must be released
forthwith.
ORIGINAL
JuR1sDICTION: Pet

## Text

S.C.R.
SUPREME COURT REPORTS
51
present case, because they have no bearing
on
the
questions which we have to consider in this case.
For the reasons given above, we hold that the
Industrial Tribunal came to the correct decision
that
the respondents employed in the electricity department
of the Baroda Municipality w<;re not entitled to the
bonus claimed, and the Labour Appeliate Tribunal
came to an erroneous decision on that question in its
order d::ited November 23, 1955. W c accordingly allow
the appeal and set aside the order of
the
Labour
Appellate
Tribunal.
In
the
circumstances
of
this
case, we direct that the parties \Viii bear their own
costs throughout.
Appeal allowed.
ABDUL JABAR BUTT
ti.
STATE OF JAMMU AND KASHMIR
(with connected petition)
(S.
R.
DAS, C.J.,
BHAGWATI,
VENKATARAMA
AYYAR.
B. P. SINHA and S. K. D11.s, JJ.)
Preventive Detention-Legality-Time prescribed for communicating grounds of detention to the dett•nue-·As soon as may be',
Meaning of-Declaration enabling· withholding of such mmm1111ication, if must be made by Government 1,efore expiry of ..-11<.'1 time-
/ammu and Kashmir Preventive Dcte11tio11 Act (JV of Sam hut '21!1 l),
s. 8(1 ), Proviso.
The two petitioners were detained under s. 3( I) of the Jam mu
and Kashmir Preventive Detention Act on April 26, I<)';\ with a
view to preventing them from acting in a manner prcjudicinl to
the security of the State.
No grounds were communicated to
them under s. 8( I) of the Act and no declarations """e made
under the proviso of that section.
The petitioners applied to the
High Court under s. 491 of the Code of Criminal Procedure and
•foring the pendency of those applications, on June 30, 1956,
declarations under the proviso were made by the Government to
the effect that it would be against the public interest to communicate to the petitioners the. grounds on which the orders of detention
~-
had been made against them. On July 28, 1956, the High Court
rejected
the
applications.
The
cases
of
the
petitioners were
Baroda Borouglr .
Municipalitp
v.
Its Workmen
S. K. Das].
November
13
19!;6
Abdul Jabar
Butt
v.
Gtau of Jammu
& Kt11hmir
52
SUPREME COURT REPORTS
(1957]
reviewed by the Government under s. 14(2) of the Act in consultation with a person nominated for that purpose on June 4, 1956,
and it was satisfied that the petitioners should continue to be
detained and, accordingly, passed orders to that effect under s. 14
of the Act on September 26, 1956.
The question was whether
the declarations were made within the_ time prescribed by s. 8( 1)
of the Act for comn1unicating the grounds of detention and, if not,
whether the petitioners had 'been lawfully detained.
Held, that the expression 'as soon as may be' in sub-s. (I)
of s. 8 of the Ja1nmu and Kashn1ir Preventive
Detention Act,
whereby the Act prescribed the time within which the Govern1nent must comn1unicate to the detenue the grounds
of
his
detention, meant within .a reasonable time, with the understanding
to do the act \vithin the shortest possible tin1ei from the date of
detention.
King's Old Country, Ltd. v. Liquid Carbonic Can. Corpn. Ltd.
(1942) 2 W.W.R. 603, followed.
Uiagar Singh v. The State of the Punjab, [1952] S.C.R. 756 and
Keshab Nilkanth foglekar v. The Commissioner of Police, Greater
Bombay, Petition No. 602 of 1956, decided on September 17, 1956,
referred to.
Although it might not be possible in many cases to con1pute
the span of time thus indicated by hours, days or months, what
was possible and the Court had to do in the facts and circum·
stances of each particular case, was to find whether the act was or
was not done within the time which was reasonably convenient
or reasonably requisite.
The proviso to the sulrsection clearly implied that the power
it vested in the Government to exclude from the operation of the
sub·section a:rtain class of
detenues by
making the required
declaration, must be exercised and such declaration made before
the exi)iry of the time prescribed by the sub.section for communi·
eating to the detenuc the grounds on which the detention order
against him had been made.
Hissam-VJ-Din Battdy and Others v. The State, A.LR. 1955
J. & K. 7, overruled.
Consequently, as in the instant cases the affidavits filed on
behalf of the Government disclosed no particular cjrcumsrancc or
reason why the declarations under the proviso could not have
been made before more than two months had elapsed fro1n the
dates
when the
orders of detention had become effective,
the
detenues must be held to have been
deprived of their liberty
otherwise than in accordance with the procedure established
by
the Act, embodying as it <foes the fundamental right guaranteed
under Art. 22(5) of the Constitution of India, and must be released
forthwith.
ORIGINAL
JuR1sDICTION: Petition Nos.
173 & 174
of 1956.
'
S.C.R.
SUPREME COURT REPORTS
53
Under Article 32 of the Constitution for a wrii in
the nature of Habeas Corpus.
/. B. Dadachanji, Amicus Curiae, for the petitioners.
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 dClivered by
DAs C.J.-These
two petitions raise
a common
question of interpretation of s. 8 of the Jammu and
Kashmir Preventive Detention Act,
2011, being Act
IV of (Sambat) 2011 (hereinafter referred to as the
Act). Both the petitions have been filed under Art. 32
of the Constitution of Indja, complaining that the
petitioners have been and are being wrongfully detained
under the Act and praying for their immediate release.
By two separa_te orders made by the Jammu and
Kashmir Government on April 26, 1956, in exercise of
the powers conferred on it by sub-s. ( 1) of s. 3 of the
Act the Government ordered that the petitioners be
detained. Each of the orders recited that the Government had been satisfied with respect to each of the
petitioners that with a view to preventing him from
acting in a manner prejudicial to the security of th~
State, it was necessary to make an order that he be
detained. No grounds having been supplied to either
of the petitioners nor any declaration
having been
made under the proviso to s. 8(1) of the Act for a
considerable time, each of the petitioners applied to the
High Court of Jammu and Kashmir under s. 491 of the
Code of Criminal Procedure for an order in the nature
of a writ of habeas corpus. During the pendency of
those applications on June 30, 1956, that is to say,
more than two months after the elate of the original
order of detention, ' a declaration was
made by the
Government under the proviso to s. 8 ( 1) to the effect
that it would be against the public interest to communicate to the detenues · the grounds on which the
detention orders had been made. On July 28, 1956,
both the petitions were dismissed by tfle High Court.
It appears that the case of each of the detenues had
~9/)6
Abtlul J~111
Bull
v.
Sl4f1 qf ]ll/Tlr1W
& lr41frmir
1956
'4bdul Jabar
Butt
v.
state of Jamm"
& Kashmir
D., C.J.
54
SUPREME COURT REPORTS
[1957]
been reviewed by the Government under sub-s. (2) of
s. 14 of the Act in consultation with a person nominated
by the Government for that purpose on June 4, 1956,
and the Government was satisfied that the detenues
should
continue
to
be
detained.
Accordingly
on
September 26, 1956, in exercise of the powers conferred
by s. 14 of the Act the Government issued two separate
orders directing that the said two detenues do continue
to be detained. In the meantime on September 19, 1956,
the two, present applications were filed
before
this
Court. The question is whether the declaration under
the proviso to s. 8 ( 1) of the Act was made within the
time fixed by s. 8 (1) of the Act for the communication
to the detenues of the grounds on which the orders of
detention had been made, and if not,
whether the
detention became illegal.
These two petitions came up for hearing before a
Division Bench of this Court on October 20, 1956, when
the attention of the Court was drawn
to a Full Bench
decision of the Jam mu and Kashmir High Court in
Hissam-Ud-Din Bandy and Others v. The State('),
where it was held that though it was highly undesirable
that a detenue should remain in suspense, the;e was no
time limit fixed by the proviso for mal:in
a declaratior.
and that, therefore, where the detention was for reasons
of security of State, the mere fact that the declaration
had been delayed beyond a reasonable time
after the
'1ate of detention did not vitiate the detention. As the
decision of a Full Bench consisting of three Judges
required consideration, the Division Bench took the
view that the petitions should be placed before a larger
Bench.
Hence the petitions have 'ome up before us
for final disposal.
Some of the provisions of the Constitution of India,
subject to · some exceptions
and
modifications,
were
extended to the State of Jammu and Kashmir by
the
Constitution
(Application to Jammu and
Kashmir)
01der, 1954, made by the President in exercise of the
powers conferred on him by cl. (I) of Art. 370 of the
Constitution. Amongst other things in Art. 35
as
(1) A.I.R. 1955 J. & K. 7.
S.C.R.
SUPREME COURT REPORTS
55
extended to Jammu and Kashmir a new clause was
added, namely,
" ( c) 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
five vears from the commencement of the said Order,
except as respects things done or omitted to be done
before the expiration thereof."
Ther~fon:, the detention of the petitioners cannot be
-questioned for five years from the date of the President's
order on the ground that the Act is inconsistent with
any
of
the
fundamental rights guaranteed under
Part III of the Constitution. The legality of the petitioners' detention will, therefore, depend on and have
to be considered on a true construction of the provisions
of the Act.
Turning now to the Act we come to s. 3, which gives
to the Government
and some of its officers specifically
enumerated therein the power to make an order of
detention
against
certain
persons.
The
conditiQ.n
precedent to the making of such order is that the
Government must be satisfied with respect to any
person that with a view to preventing him from acting
in any manner prejudicial to certain enumerated objects
it is necessary to make an order of detention. The
enumerated objects include 4 items, namely, (i) security
of the State or (ii) the maintenance of public order or
(iii) the maintenance of the loyalty of and discipline
among the members of the police forces of the State or
(iv) the maintenance of supplies and services essential
to the community. There is also a provision in cl. (b)
of sub-s. (1) relating to a foreigner to which it is not
necessary for the present purposes to refer. As soon
as an order is made under s. 3, the provisions of s. 8
come into play.
Section 8 on a true construction of
which our decision of these petitions will depend runs
as follows :-
1956
Abdul Jabar
Butt
v.
Stale of Jammu
& Kashmir
DasC.J.
v.
StaU qf Jamt1W
& Kashmir
Das C.].
56
SUPREME COURT :REPORTS
[1957}
8. ( 1) When a person is detained in pursuance
of a detention order, the authority making the order
shall, as soon as may be, communicate to him the
grounds on which the order has been made, and shall
afford him the earliest opportunity of making a representation against the order to the Government :
Provided
that
nothing contained 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 if the
Government by order issued in this behalf declares that.
it would be against the public interest to communicate
to him the grounds on which the detention order has
been made.
(2) Nothing in sub-s. (l) shall require the authority
to disclose facts which it considers to be against
the·
public interest to disclose.
Sub-section (1) without the proviso is only a reproduction in substance of the provisions of cl. ( 5) of
Art. 22 of the Constitution.
Sl!b-section ( 1) imposes on the Government twoduties, namely, (i) the duty of
communi~ating to the
detenue the grounds on which the order has been made·
·and (ii) the duty of affording him the earliest opportunity of making representation against the order tothe Government. The first duty is to be performed
'as soon as may be'. Quite clearly the period of time
predicated by the phrase 'as soon as may be' begins
to run from the time the detention in pursuance of the·
detention order begins. The question is-what is
the
span of time, .,which is designated by the words 'as.
soon as may be'_? The observations of Dysant, J., in
King's Old Country, Ltd. v. Liquid Carbonic
Can.
Corpn., Ltd.('), quoted in Stroud's Judicial Dictionary,
3rd edition, vol. 1. page 200, are apposite. Said the
learned Judge, "to do a thing 'as soon as possible'·
means to do it within a reasonable time, with an
understanding to do ·it within the shortest possible
time."
Likewise
to
communicate the grounds 'as
soon as may be' may well be said to mean to do so
(1) (1942) 2 W.W.R. 6o3, 6o6.
S.C.R.
SUPl\EME COURT REPORTS
57
within a reasonable time with an understanding to do
it within the shortest posSible time. What, however,
is to be regarded as a reasonable time or the shortest
possible time? The words 'as soon as may be' came
for consideration before this Court in Ujagar Singh
v.
The State of the Punjab(1 ). At pages 761-762 this Court
observed that the expression meant with a "reasonable
despatch" and then went on to say that "what was
reasonable - must depend on the facts of each case and
no arbitrary time limit could be set down." In Keshav
Nilakanth foglekar
v.
The Commissioner of
Police
Greater Bombay and 2 Others( 2 ) the word "forthwith"
occurring in s. 3(3) of the Indian Preventive Detention
Act (IV of 1950) came up for ' consideration. After
observing
that
the
word
"forthwith" occurring in
s. 3(3) of that Act did not mean the same thing as "as
soon as may be" used in s. 7 of the same Act and that
the former was more l?eremptory than the latter, this
Court observed that the · time that was allowed to the
authority to communicate the grounds to the detenue
and was predicated by the expression 'as soon as may
be'
was
what
was
"reasonably
convenient"
or
"reasonably requisite."
Whenever
the
question
of
reasonableness arises in computing the period of time
the Court has perforce to have regard to the particular
circumstances of the case in which the question arises
for decision. It may not be possible in many cases to
· affirmatively say or to precisely quantify the period of
time by reference to hours, days, or months; nevertheless, it is possible having regard to the circumstances
of the case, to say whether the thing done was or was
not done 'as soon as may be' i.e., within the time
which was
reasonably
convenient or requisite.
It
cannot be disputed and indeed it has not been disputed by the learned Attorney-General that sub-s. ( 1) does
prescribe a period of
time within which the communication is to be made and this time begins to run
from the date the detention under the order takes
effect.
(1) [1952) S.C.R. 756,
(2) Supreme Court Petition No. 102 of 1956, decided on September 17,
1956.
1956
~·tlul Jabar
Blllt
v.
State of ]ammtJ
& Kashmir
Dru C.J.
1956
Abdul Jabar
Butt
v.
State of Jammu
& Kashmir
DasC.J.
58
SUPREME COURT REPORTS
[1957]
The proviso to sub-s. (1), however, makes the entire
sub-s. (1) inapplicable in certain circumstances~ namely,
(i) where a person is detained with a view to preventing him from acting in any manner prejudicial to the
security of the State and (ii) the Governmenf by order
issued in that behalf declares that it wou!<l be against
the public interest to communicate to him the grounds
on which the detention order has been made.
The
learned Attorney-General contends ·that the proviso in
terms does not specify any time within which
this
power is to be exercised by the Government, that is to
say, it does not specify any time within which the
Government must make the declaration and he contends that there is no reason to imoort the time limit
laid down in sub-s. (1) into the proviso. So also it has
been held by the Full
Bench
of
the
Jammu and
Kashmir High Court in the case referred to above.
Learned Attorney-General urges that this emission to
~pecify the period of time in the proviso was deliberate
:ind is in consonance with the scheme of the Act. He
starts · with the contention that the object of communicating the grounds is to afford the detenue an
opportunity to make a representation to the Government against the order. He then refers to s. 10 which
directs that the Government shall within 6 w.:eks from
the date of detention under the order place before an
Advisory Board constituted by it under section 9 the
grounJs on which the order has been made and the
representations, if any, made by the detenue and in a
case where the order has been made by an officer, also
the report made by the officer under sub-s. (3) of s. 3.
He next points out that this requirement of s. 10 is
"subject to the provisions of s. 14." Then he takes us
to s. 14 of the Act. That section provides that notwithstanding
anything contained
in this Act
any
person detained under a detention order made in any
of the classes of cases or in any of the circumstances
therein mentioned may be detained or continued in
detention without ohtaining the opinion of the Advisory Hoard for a period longer than 3 months but not
exceeding five years from the date of detention. The
two classes of persorn who may be detained without
S.C.R.
SUPI<.EME COURT REPORTS
59
obtaining the opinion of the Advisory Board -comprise
persons who have been detained with a view to preventing them from acting in any manner prejudicial to
(i) the security of the State and (ii) the maintenance of
public order. The cases of persons falling under these
two classes are by sub-s. (2) of s. 14 to be reviewed
within a period ot
months from the date of detention
and thereafter at intervals of every 6 months if the
detention
continues, in consuitation with a person
possessing certain qualification who may be nominated
in that behalf by the Government. Going back then
to the proviso sub-s. (1) of s. (8) the Attorney-General
points out that the declaration contemplated by the
proviso can only be made in the case of a person
detained with a view to preventing him from acting in
any manner prejudicial to the security of the State. By
virtue of s. 14 the case of such a person will not go to
the Advisory Board, but will have to be reviewed in
consultation
with
the
person
nominated
by
the
Government under s. 14. Therefore, it will be enough
if the grounds are communicated to such a detenue
within 6 months from the date of detention when his
case will°be reviewed under sub-s. (2) of s. 14. We arc
unable to accept this line of reasoning as sound.
In the first place it is a fundamental rule of construction that a proviso must be considered with relation
to the principal matter to which it stands as a proviso.
Therefore, the proviso in question has to be construed
harmoniously with the provisions of sub-s. (1) to which
it is a proviso.
As
we have already mentioned,
immediately after the making of the order, sub-s. (1)
of s. 8 begins to operate. If the grounds arc not
communicated to the detenue within the period of time
described by the expression 'as soon as may be' the
detenue becomes deprived of his statutory right under
sub-s. ( 1) and his detention
in
such
circumstances
becomes illegal as being otherwise than in accordance
with procedure prescribed by law. In order to prevent
this result in certain specified cases the proviso authorises the Government to issue the requisite declaration
so as to exclude entirely the operation of sub-s. (1).
It, therefore, stands to reason and
i~ consistent with
1956
Abd~l Jabar
Bult
v.
Stol1 ef jammu
& Karhmir
DasC.J,
1956
.Abdul ]ab!JI'
Butt
v.
Stau of Jammu
&"Kashmir
Das C.J •.
60
SUPREME COURT REPORTS
[1957]
the principle · of harmonious construction of _statutes
that the power. of issliing a declaration so as to prevent
the unwanted result of
the
operation of sub-s.
(I)
should be exercised before that very result sets in.
In the second place it will be recalled that the order
. of detention may be made under s. 3(l)(a) of the Act
· against a person with a view to preventing him from
acting in any manner prejudicial to the four objects
. enumerated therein. As soon as an order of detention
is made under s. 3(l)(a), the authority making the
order is ·by s. 8 ( 1) placed under the obligation to communicate the grounds of the detention 'as soon as may
be.' If no declaration is made under the proviso, s. 8(1)
will operate in the case of every detenue to whichever
of the four categories
he may belong. The proviso
enables the Government to prevent the application of
sub-s. (1) to certain· class of detenues only. It follows
that the detenues who do not fall within that clause
must have the grounds communicated to them and
there is · no . power given to the Government to exclude
· the operation of sub-s. ( 1) from those cases. It will be
noted that under the proviso the Government may
excluded the application of sub-s. ( 1), only in the case of
a person who has been detained with a view to prevent
him from indulging in activities prejudicial to the
security of the State
and · o_nly if the Government ,
declares that it will be against. the public interest to
communicate the grounds to him. Even if a person
has been detained on account 'ilf his activities being
prejudicial to the security of the State the Government .cannot exclude the operation of sub-s. (1) from
his case unless the Government is ·prepared to declare
and declares that it would be again~t . the public interest to communicate to him the grm1nds on which the
detention
order has been
made.
Therefore, those
persons who have been detained on . account of their
activities being prejudicial to the security. of the State,
but with regard to whom the Government cannot or
does not think fit to declare that it would .be against
the public interest to communicate to them the grounds,
will continue to be governed by sub-s.
( 1) and such
_persons, like the persons belonging to the other three
S;C.R.
SUPREME COURT .REPORTS
61
categories, will be entitled to · have the ·grounds communicated · to them 'as soon as may ·be.' As such persons will be governed by sub-s. (1), it. becomes clearly
incumbent upon the Government to decide within the
time envisaged· bysub-s. (1) whether it should make
the requisite declaration or not, for otherwise such persons will be seriously prejudiced .. Suppose the Government does not make a declaration with regard to
persons falling within that class within that time but
subsequently decides that it would not be against
the
public interest to communicate to them the grounds,
then the absence of such a declaration under the . proviso . will
bring about
the
unfortunate result
that ·
those persons will be deprived of their valuable right ·
of having the grounds communicated to them 'as s.oon
as may be' and to . have the earliest opportunity afforded to them of making . a representation. 1n the context
. of the. liberty of the subject we rp.ust adopt a construction which would have the .effect of preventing such
an undesirable result.
Further under section 14 the person falling under
the two categories mentioned therein "may" be .detained
or continued in detention without. obtaining · the
opinion of an Advisory Board for a period longer than
3 months. There is nothing to suggest that the cases
of all .persons falling ·within the .two categories must
necessarily not be referred to the Advisory Board, but
must be reviewed under sub-s.
(2).
Persons ·against
whom orders of detention are made with a view to
preventing them from acting in any ·manner prejudicial
to the security of the State and with respect to whom
the Government does not consider that . it would be
against the public interest to communicate to them the
grounds, will be entitled, under sub-s: (1), to have their.
grounds 'as; soon as may be' and there is nothing to
prevent the Government from sending their cases together with the grounds ;md their representations, if
any, to the Advisory Board under s. 10 of the Act.
Therefore, with respect to such persons the grounds
must be supplied 'as soon as may be' under sub-s. (1)
and cannot be postponed for 6 months referred to in
section 14.
1956
Abrlul ]a~ar
Butt
v.
State of Jammu
& Kashmir
Das C .. 'f.
1956
Abd~I Jabar
Butt
v.
State ef Jamm•
& Kashmir
DasC.J.
62
SUPREME COURT REPORTS
[1957]
Finally the review contemplated by sub-s. (2) of s. 14
is to be made "within" a period of 6 months from the
date of detention. There is no reason to hold that in
every_case such a review will be held on the last day
of that period of 6 months. With regard to a person
falling within the category of persons whose activities
are prejudicial to the security of the State but with
respect to whom the Government does not think fit to
make any declaration under the proviso, he would be
entitled to have the grounds communicated to him 'as
soon as may be' and he may immediately make such
cogent and convincing representation to the Government as may induce the Government to release him
forthwith without waiting for the last day of the 6
months.
Fpr reasons stated above we see no difficulty in construing the proviso as implying that the time for making
the declaration should be co-terminous with the time
fixed for communicating the grounds under sub-s. ( 1).
When the detaining authority
makes the order of
detention, it specifies in the preamble to the order why
the order is made, namely, whether it is made with- a
view to preventing the detenue from acting in any
manner prejudicial to one or other of the four objects
enumerated in s. 3(1)(a). If the Government can make
up its mind. that the detention order is made against
a particular person on account of his activities being
prejudicial to the security of the State, there is no
reason why the Government . should not at the same
time or 'as soon as may be' thereafter make up its
mind as to whether or not it would be against the
public interest to communicate to such person the
grounds on which the detention order is made. In our
opinion the authority vested in the Government to
make a declaration contemplated by the proviso must
be exercised before the expiry of the span of time
predicated by the expression 'as soon as may be' occurring in sub-s. ( 1). Such a construction will ensure
harmonious operation of ss. 8, 10 and 14. These aspects
cf the matter do not appear to have been pointedly
brought to the notice of the Full Bench of the Jammu
and Kashmir High Court and in our opinion that deci.
sion cannot be accepted as correct.
•
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.