# S70 SUNA ULLAQ BUTI' v. STATE OF JAMMU & KASHMIR & ORS

- **Citation:** [1973] 1 S.C.R. 870
- **Court:** Supreme Court of India
- **Decided:** 1971-10-24
- **Case number:** Writ Petition No. 195 of 1972
- **Bench:** J. M. Shelat, I. D. DuA, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s70-suna-ullaq-buti-v-state-of-jammu-kashmir-ors-5729
- **Pages:** 5

## Headnote

Jammu and Kashmir Preventive Detention Act 1964, s, 12---0rder of
State Govt. confirming detenti{)n whether must sp~cify period of detention
-Lack of such ~pecificarion whether vWares detention.
The petitioner was detained under ss. 3t2) and 5 of the Jammu &
K::~hmir Preventive Detention Act 1964 by an order of the District
Magistrate. Aco.xding to the ground~ of detention supplied to the peti·
tioner he was in the service. of Pakistan Intelligence and had also recruited
other persons to supply military information to Pakistan Intelligence. After
the Advisory Board had given its opinion holding that the detention was
justilled, the State O.:>vernment confirmed the order of detention.
The
petitioner filed a writ petition under Article 32 of the Constitution. The
Court rejected the contentiOn of the petitioner that he was
already bl
custody when the order of detention was passed.
The Court also found
that the activities of the petitioqer were prejudicial to the security rll tht
9tate within the meanin& of -s. 3 (i) of the Act. On the question whether
tbe failure of the State Government to specify.. the period of detention introduced an infirmity in the detention of the petitioner,
HELD : It is difficult to itifer from the language of s_ction 12 of the
Aot that the State Government while confi""n1ing the detention order lhould
arso ~peqfy the period of detention. All that the section requirea i• that.
if the Advisory Board has reported that there is, in its opinion, 10ufficient
c ·,113e for the detention of the person, the Government may confirm tbt
detention order. There is nothing in the section which enjoins upon the.
Government to specify the period of detention also while confirmin2 the
detention (,>rder. [873E-F]
Further it is not always practicable and feasible 1for the State Government at the time of confinning the detention oroor to specify the perio.d
of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and
the State Government would have to m1ce into ac.ount all the circurnstanc.lfl
including fresh developnents and subsequent event~ in deciding whether
to keep the detenu in detention !for the maximum period or· to release him
earlier. It has accordingly been provided in sub-section (2) of section
13 of the Act that the State Government would have the power to revoke
or modify the detention order at any time earlier than the expiry of two
yea~ from the ~ate of detention. [873H·874AJ
Ujagar Singh v. The State {)j the P1mjabt fl952], S.C.R. 756. applied.
OR.IGINAL JURISDICTION : Writ Petition No. 195 of 1972.
Under Article 32 of the Constitution of India for the enforcement of fundamental ri~hts.
Om Prakash, for the petitioner.
R. H. Dhebar and R. N. Sachthey, for the respondent.
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S. U. BUTT. V. J. & K. STATE (Khanna, J.)
871
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## Text

S70
SUNA ULLAQ BUTI'
v.
STATE OF JAMMU & KASHMIR & ORS.
August 16. 1972
[J. M. SHELAT, I. D. DuA AND H. R. KHANNA, JJ.]
Jammu and Kashmir Preventive Detention Act 1964, s, 12---0rder of
State Govt. confirming detenti{)n whether must sp~cify period of detention
-Lack of such ~pecificarion whether vWares detention.
The petitioner was detained under ss. 3t2) and 5 of the Jammu &
K::~hmir Preventive Detention Act 1964 by an order of the District
Magistrate. Aco.xding to the ground~ of detention supplied to the peti·
tioner he was in the service. of Pakistan Intelligence and had also recruited
other persons to supply military information to Pakistan Intelligence. After
the Advisory Board had given its opinion holding that the detention was
justilled, the State O.:>vernment confirmed the order of detention.
The
petitioner filed a writ petition under Article 32 of the Constitution. The
Court rejected the contentiOn of the petitioner that he was
already bl
custody when the order of detention was passed.
The Court also found
that the activities of the petitioqer were prejudicial to the security rll tht
9tate within the meanin& of -s. 3 (i) of the Act. On the question whether
tbe failure of the State Government to specify.. the period of detention introduced an infirmity in the detention of the petitioner,
HELD : It is difficult to itifer from the language of s_ction 12 of the
Aot that the State Government while confi""n1ing the detention order lhould
arso ~peqfy the period of detention. All that the section requirea i• that.
if the Advisory Board has reported that there is, in its opinion, 10ufficient
c ·,113e for the detention of the person, the Government may confirm tbt
detention order. There is nothing in the section which enjoins upon the.
Government to specify the period of detention also while confirmin2 the
detention (,>rder. [873E-F]
Further it is not always practicable and feasible 1for the State Government at the time of confinning the detention oroor to specify the perio.d
of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and
the State Government would have to m1ce into ac.ount all the circurnstanc.lfl
including fresh developnents and subsequent event~ in deciding whether
to keep the detenu in detention !for the maximum period or· to release him
earlier. It has accordingly been provided in sub-section (2) of section
13 of the Act that the State Government would have the power to revoke
or modify the detention order at any time earlier than the expiry of two
yea~ from the ~ate of detention. [873H·874AJ
Ujagar Singh v. The State {)j the P1mjabt fl952], S.C.R. 756. applied.
OR.IGINAL JURISDICTION : Writ Petition No. 195 of 1972.
Under Article 32 of the Constitution of India for the enforcement of fundamental ri~hts.
Om Prakash, for the petitioner.
R. H. Dhebar and R. N. Sachthey, for the respondent.
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S. U. BUTT. V. J. & K. STATE (Khanna, J.)
871
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The Judgment of the Court was delivered by
Kbannllt _J •. This is. a petition through jail under article 32
of the Consutuuon for Jssumg a writ of habeas corpus by Sun<t
Ullah Butt, who ~as been ordlCr~ by the District Magistrate
poonch to be detaine<;f under ~xon 3 (2). read with section s of
the Jammu & Kashmir Preven_uve ~tention Act, 1964 (herein-
!! after r~ferred to as the A~t) .~tth a VIew to pr~euting him "from
acting JD any manner preJUdtclal to the security of the State"
The order .of detention was passed by the District Magi.itrate ·.
on October 24, 1971, In pursuance of the detention order the
petitioner was taken into cu~tody tho same day and was expl~ined
c lhe substance of the detention order. The petitioner was thereafter kept in Central Jail Jammu. The grounds of detention wer~
eommunicated to the petitioner on November 1, 1971 in accordance with section 8 of the Act, which requires that such grounds
should be communicated to the detenu as soon as possible butJlCit later than 10 days from the date of detention. The order or
I) detention was approved by. the Chief Minister, who was incharge
of the Home Department., on November 12, 1971. The case of
lbc petitioner was placed before the Advisory Board on December
16, 1971. The Board communicated its opinion on February 19,
1972 that the detention of. the petitioner was justified. An order
~onfinning the detentiOn order w~ thereafter made by .ru, State
Government on March 3, 1972 under section 12 of the Act.
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The grounds of detel)tion gave tho following particulars :
"You. Son uUah s/o Khawaja Mahad Joo r/o.Sri
Chohan a, P /S Surenkot, District Poonch, were recnu~
as a source by Cap. Kiani and Sube.dar Shah of Pa~
lotelliRence in 1968. when you had crossed over to POK
and settled at Palanf!ri.
· 2. Working as souru of the ~bove mentioned offi:
ccrs, you introduced Abdnl Ghani s/ o Asda Rather
G·
resident of your own village, ~afiq ~/o Goffllf J1oo
r/o Poonch and Gbulam Mohi-ud-Dtn s/o Kanm oo
r/o Seri Chohana with Pak lnteltigenco, who ~ere recruited as ~ources by them.. These sour~ supphed vital
Indian Army informations to Pak Intelhgenc~.
·
3. You at the insmnce oC above menti~ned. offi;r:.
o{ Pak Intelligence eros~ over to
1
o~r 5}~~i;~ Ar~y
1971 with the pUJ'P()$0 ot further ~upp ywg
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informations to Pak: Iotelligonce.
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bo
r activities were founct
n v1ew of the a
ve you
'tv f the State hence
e!ltremely prejudicial to the secun.J 0
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-.
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812
(1973] l S.C.R_
you were detaitled mtdtr She J·ct ~ ~~
~
Ac~ so that you are prevented from indulgmg m such
netarious activities." ·
Tbe petition has been resiste<;l by tho S~te of J~u 4: Kashmir and other respondents, and the affidaVIt of Shri Moba!'JUUd
Aslin Additional Secretary to the Government of I ammu & Kash.
mir, Home DepartmeJ}t, has been filed in opposition to tba
petition.
Arguments have been addressed by Mr. Om Parkash amicur
curiae on behalf of the petitioner, while the respondents ha-ve
been represented by Mr. R H. Dhebar.
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The first contention which has been raised by Mr. Om Pukash on behalf of the petitioner is that he was arre.)tOO on Octobclr
6, 1971 and was already in custody when the detention order ·
was made against him on October 24, 1971. It is stated that no
detention order can legally be mad;, against a person who ii
already iri custody on the date of the detention order. It is, !n
our opinion, not necessary to exprcs3 an opinion on the abstract
proposition of law that no detention order can be made against a
person wbo is already in custody on the date of the making of
such ord:r because, in the present case, we find that the petitinoer
was D?t m custody on October 24, 1971 when the order for his
dctent10.n. ~as ~ad:.
As no express ground had been taken by
the t>ehttone.r m . hts. petition that the detention order was legal
.E
because of his bemg m custody on the date of the mnking of that
order, no averment was made in the affidavit initi:llly filf'fl. .:>n behalf of the respo~dents on. the point as to whether the petitioner
was or -was not m custody on the date the detention order w~
P~~sed. Whe~ an ·argument on that score was
advanced
we
~ JOU~ed the case to ~nable the resnondents to file affida~it on r
~e pomt. Two affidavits have thereafter been filed on behalf of
1 e resoon~ents .
Ac(:ording to 'he affi(lavit of Shri · Krishantat
Gupta, Station House Officer, Police Station Poonch the petiti~Jll·
~;::~:t~l gcJc;>ber 6, 1 97! in a c~se unde~ the Internal
Ordnian
d 1 . 1 mance, Public Secuntv Act, Enemy A<!tnt
1 sed~ an
ndtan Arms Act. The petitioner was howeo;er.
~::avit ~~ ~~~ ~~e, on October 2.0: 1971. It is further in tho
G
of the police on Oct~~ t~~t \\e1 Petit toner was not in the cust~Y
was mad
Th
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1 when the order for his detentJon
Dr. Ravi~dra cfu~~e~ffi~ayit which .ha:r been filed is that$
Jammu.
Acoordin~ ' to n;at~g Sunenntendent of ·central J
petitioner was broul!ht to ~tr tJ'~· the records sho~ that mr
m oursuance of order dated :X 81bel Jammu on October 2~~ Jl
Marirtr:ate Poonch. Th
to
~ l4. 1971 of the wu_..
di~lievUig tho !ta- appea!" to ~ no co~ent V;rOU11d J:
contained 111 the a.ffidaY.its ot
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8. U. BUTT v. :1. & K. STATE (Khanna, J.)
873
Krishanlal Gupta and Dr. Raviudra Gupta. It ia manifelt from
these two atti<iavits that ~ peuuoner wa.i not in cusLOCly on
October 24, 1971 when the order for his detention was made by
the District Magistrate.
The second contention of Mr. Om Parkash relates to the fact
that the period for which the petitioner was to be detained bas
not been mentioned in the ord.Cr of the State Government dated
March 3, 1972 confirming the detention order. It is urged that
the iailure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. Thia
contention, in our opinion, is without any force.
According to
sub-section ( 1 ) of section 17. of the Act, in any case where the
Advisory Board has reported that there is, in its opiruon, sufficient
cause for the detention of a person, the Government may confirm
the detention order and continue the detention of the person concerned for such period as it thinks fit.
Section 13 of the Act
specifies ,the maximum period of detention.
According to that
section, the maximum period for which a person may be detained
in pursuance of any detention order, which has been confirmed
under Section 12, shall be two years from the date of detention.
It is .. further provided that nothing in the section shall affect the
power of the Government to revoke or modify the detention order
at any earlier time. It is, in our opinion, diffj.cult to infer from
the language of section 1 ~ of the Act that the State Government
while confirming the detention order should also sp~ify the period
of detention. All that the section requires is that, if the Advisory
Board has reported tha!t there is, in its opinion, sufficient cause
for the detention of the pers:"ln, the Government may confirm the
detention order. There is nothing in the section which enjoins upon
the Govemmen.t to specify the period of detention also while con·
firming the detention order. The concluding words of sub-section
( 1) of secti()n 12, according to which the Government may con·
tinue the detention of the person concerned for such period as it
thinks fit, pertain to and embody the consequence of the confirmation of the detention order. It is, however, manifest that the
period for which a person can be detained after the confinnation
of the detention order is subject to the limit of two years, which
is the maximum period of detention f6r which a person can be
detained, vide section 22 of. the Act.
Apart from the above, we are of the opinion that it is not
always practicable and feasible for the State Government at tbe
time of confirming the detention order to soecify the oetiod of
detention. The continued detention of the detenu, subject to the
maximum period prescribed by the Act, deoonds upon a variety
of factors and the State Government would have to take into
account all the circumstances including fresh developmepts and
subsequent events in deciding whether to keep the dct;enu
in
874
SUPREME COURT .REPORTS
[1973] 1 S.C.R.
detention for the maximum period or to release him earlier. It
has accordingly been provided in sub-section ( 2) of sectio.n. 13
of the Act that the State Government would have the pow« to
revoke or modify the detention order at any time earlier than the
expiry of two years from the date of detention.
We may also mention in the above context that in the case of
Ujagar Singh v. The State of the Punjab(!) this Court, while dealing with a case und~ the Preventive Detention Act, held that nonspecification of any definite period in a detention order made
under section 3 of that Act was not a material omission as would
render the order to be invalid.
So far· as the grounds of detention are concerned, it is manifest
that the activities of the petitioner menti6ned therein arc germane
to the object for which detention can be ordered.
Sub-.section
( 1) of section 3 of the Act provides inier aUa that the Government
may if satisfied with respect to any P,erson that with a view to
preventing him from acting in any manner prejudicial to the
security of the State it is necessary so to do make an ordor diroctHi,g that such person be detained. The activities of the petitioner
mentioned in the grounds of detention show that l 1 ~ was haviB:
contact with Pakistan Intelligence Officers and was a:.·~isting thorn
in securing vital information rel'ating to Indian .An..".
It is
obvious that the above activities. of the petitioner imp; .. !,O upon
the security of the State. No legal infinnity can con5e(1; .. ently be
found in the order for the detention of the ,petitioner which was
made with a view to prevent him from acting in any m~.nner prejudicial to the security of the State.
TI1e petition consequently fails and is dismissed.
G. C.
PetWnn dismissed.
(l) (19S2) S.C.R. 756.
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