Holding

The detention order is invalid because the representation was not dealt with expeditiously, violating Section 13(1) of the Jammu & Kashmir Public Safety Act, 1978.

Summary

Vijay Kumar was arrested on 26 June 1981 and detained under the Jammu & Kashmir Public Safety Act, 1978 on 11 July 1981. He filed a representation against the detention on 29 July 1981, which reached the State Government on 12 August 1981 and was finally rejected on 31 August 1981, a delay of 19 days after receipt. The Supreme Court held that Section 13(1) of the Act obliges the detaining authority to give the detainee the earliest opportunity to make a representation and to consider it expeditiously; the unexplained delay violated this statutory requirement and invalidated the detention order. The Court also noted that the detaining authority had not shown awareness that the detainee was already in jail, indicating non‑application of mind, but based its decision on the breach of Section 13. Consequently, the detention order was quashed and the petition was allowed.

Issues considered

Whether the delay in dealing with the detainee's representation under Section 13(1) of the Jammu & Kashmir Public Safety Act, 1978 invalidates the detention order.
Whether the detaining authority complied with the statutory requirement to afford the earliest opportunity to make a representation and to consider it expeditiously.
Whether the order of detention was made with non‑application of mind given the detainee was already in custody.

Legislation cited

Jammu & Kashmir Public Safety Act, 1978s. 13(1), s. 8

Subjects

preventive detentionpublic safety actrepresentationSection 13Article 22(5)delayhabeas corpusJammu & Kashmirnon‑application of mind

Judgment

A 522

VIJAY KUMAR

v.

STATE OF J & K & OTHERS
B
March 17, 1982

[D.A. DESAI AND BAHARUL {SLAM, JJ.)

Jammu & Kashmir Public Safety Act, 1978~Section 13(1)-Detaining
c _authprity must gi¥t the dttenu earliest opportunity of making reprtsentation-
Forwarding detenu's representation to Goternment-Jail authorities-Mere channel
of commqnication-Delay in transit-No excuse for delay in dealing with
representation-Unexplained delay-Invalidates ·order of detention.

The petitioner has arrested on June 26, 1981 under the Enemy Agent
Ordinance. The Chief Judicial Magistrate rejected his application for bail on
the ground that he had no jurisdiction to try him. Tho Addi. Sessions Judge
D rejected his bail application on the ground that as he was by then ordered to be
detained under the J & K Public Safety Act tho bail application has become
infructuous.

The detention order dated July 11, 1981 was served on the detenue in Jail
on July 15, 1981. His representation dated July 29, 1981 was forwarded to the
E State Government on July 29. 1981 and simultaneously a wireless message was
sent"on the same day. The representation was received by the Government on
August 12, 1981. After investigation. the file was put up to tho Chief Minister
on August 28, 1981 for approval. The Chief Minister rejected the representation
on August 31, 1981 which Was communicated to the petitioner in jail on Septem~
ber 1, 1981. The detenu's case was referred to the Advisory Board on August
3, 1981. Its report was submitted on September 4, 1981.
F
In this petition under art. 32 of the Constitution it was contended before
this Court on behalf of the petitioner that as section 13 (1) of the Jammu &
Kashmir Public S<ifety Act 1978 imposes an obligation·on the detaining authority
to give the detenu the earliest oppOrtunity of making a representation against the
detention order the long unexplained delay in this case had invalidated the order
of detention.
G
Allowing the petition,

HELD : The petitioner's representation had not been dealt with as
expeditiously as possible. There was therefore contravention of section 13 of the

tI
Act which invalidated the detention. [532 D]
H
Preventive detention, unlike punitive detention, does not afford all
opportunity to \he detenu to explain his sid~ Qf \11• matter l?efoi~ !I~ is .deprive4
VIJAY KUMAR v. J & K STATS 523

or his liberty and therefore the statute makes it obligatory on the authorities to
afford him ttie earliest opportunity to represent his case and a corresponding
obligation on the autho'rity to consider the representation. The word "earliest"
which qualifies the term "opportunity" must equalliqualify the corresponding
obligation of the State to deal with the representation iC and when made as
expeditiously as possible. [529 H; 530 A-Bl

The jail authorities who are merety a communicating channel have to B
move with promptitude so that sufficient guarantee of affording earliest opportu..
nity of making the representation and the same reaching the Government is
translated into action. The corresponding obligation of the State to consider
the representation cannot be whittled down by merely saying that time was lost
in transit. The State Government must aear up its own machinery to see that In
these cases the representation reaches the Government as early as possible and is
considered by the authorities with equal promptitude. Any unexplained delay c
would bo denial of the statutory protection given to tho dotonu. [530 0-G]

Ill the instant case there were two time lags : the representation handed
in to the Jail Superintendent on July 29, 1981 reached the Government on August
12, 1981 after a time lag of fourteen days and tho representation was disposed of
on August 31, 1981 after a time lag of nineteen days and the delay has not been
explained on any convincing ground. [531 F, 532 BJ
D

Khudi Ram Da.t v. Stat• of W••I Bef18a/, [1975) 2 SCC 81, referred to.

'
Preventive detention is resorted to~ to thwart future action. lf the dctenu
is already in jail charged with a serious offence, he is thereby prevented from
acting in a manner prejudicial to the security of the State. Where there is need E
to Order preventive detention of a person already in jail the detaining authority
mu1t disclose awareness of the fact that the ~rson against whom an order of
preventive detention is being ruade is to the knowledge or the authority already
in jajl and yet for compelling reasons a preventive detention ofder needs to be
made. L528 F-GJ

In the instant case there is nothing to indicate awarenw of the detaining F
authority that the detenu was already in jail for more than 16 days and yet the
impugned order was made. This clearly exhibits non-application of mind and
would result in invalidation of the. order. But the Court did not base its order
on this ground. [528 G-H]

ORIGINAL JuR1smcrloN: Writ Petition (C~iminal) No. 9516 G
of 1981.

(Under article 32 of the Constitution)

Bhim Singh, P.D. Sharma & Subash Sharma fot the Petitioner. II
M.N. Phadke and Alta/ Ahmed fqr the Respondeqt1,
524 SUPREME COURT REPORTS [1982) 3 s:c.R.

A . The Judgment of the. Court was delivered by

DESAI, J. On February 9, 1982 we made an order quashing
the detention order dated July 11, 1981 made by the District
Magistrate, Jammu in exercise of' the power conferred by Section 8
of The Jammu and Kashmir Public Safety Act, 1978 ('Act' for short)
B and we announced that the reasons would follow. Here are the
reasons.

The detenu Vijay Kumar was arrested on June 26, 1981. A
petition wa~ moved on his behalf b~fore the Chief Judicial Magistrate
Jammu praying for releasing the detenu, on bail. This petition for
c bail appears to have come up before thi: learned Magistrate on July
4, 1981 when the following. order was made:

"I have heard the advocate for the applicant and
perused the C.D. File. Put up for orders on 6.7.81."
D
When the matter again came up on July 6, 1981, the learned
Magistrate made the following order :

"Although there was nothing in the C.D. File about
his (Petitioner) involvement in E.A.O. (Enemy Agents
Ordinance) on 4.7.81, but today a detailed report has been
presented in which one of the offences of which he is
charged is u/s 3, E.A.O. which this Court is not competent
to try. Hence this application is returned to the applicant
for presentation to the proper court alongwith report."
F
The detenu thereupon moved an application for releasing
him on bail before the learned Additional Sessions Judge, Jammu,
who, we are informed, was competent to try the accused charged
with an offence under Enemy Agents Ordinance. His petition for
hail came up before the learned Additional Sessions Judge on July
G 11, 1981 when the following order was made:

"This application pertains to Vijay Kumar accused
who is involved for an offence under the Enemy Agents
Ordinance which is being investigated by the Counter
H Intelligence Police, Jammu. The learned Chief Prosecuting
Officer and the learned counsel for the accused have been
heard,
)

/
) vi!AY KUMAR v. 1 & K STATE (Desai, i.)

During the course of arguments an order has been A
shown. to me by the police that said Vijay Kumar accused
has now been ordered to be detained under the Pliblic
Safety Act.

In view of this order, this bail application has become B
infructuous which is disposed of accordingly."

The detemi was served with the detention order dated July
11, 1981 on the same day in jail because he was already in jail from
June 25, J.981. The grounds for detention were served on him on July
15, 1981. The deienu submitted his representation dated July 29,
1981 addressed to the Secretary the Government Home Department
c
to the Superintendent, Central Jail, Jammu where the detenu was
detained. One .Shri K.D. Sharma, Incharge Superintendent, Central
!ail Jammu bas stated in bis affidavit dated February. 6, 1982 that the
representation of the detenu dated July 29, 1981 was forwarded to
the.Government at Srinagar vide Office letter ,No. 2595 dated July D
29, 1981 and simultaneously a wireless message No. 2596 on the
same day was also sent to the Government intimating that the
representation of the detenu bad been forwarded to the Govern·
ment for appropriate action. Mr. K.S. Salathia, Deputy Secretary
to the Government of Jammu .and Kashmir, Home Department,
Jammu, in bis affidavit dated °February 9, 1982 has stated that the
representation of the detenu was received from the Superintendent,
Central Jail, Jammu in the office of the Home Department at
Srinagar on August 12, 1981. . The department also received the
comments of S.P., C.l.D. Counter Intelligence, Jammu and there-
. after the case was processed on August 24, 1981 in the office of the
Home Department at Srinagar a.nd the file was placed before the F
Home Secretary on August 25, 1981, who recommended the same.
for approval on August 28,1981 to the Chief Minister (Home) From
the same affidavit, it further transpires that the Chief Minister reject-
ed the representation on August 31, 1981 an'ci the same was com-
municated to the detenu on September 1, 1981. In the meantime,
the case of the detenu was referred to the Advisory Board on G.. ,.
August 3, 1981. The Advisory Board submitted its report to the
Government on September 4, 1981.

One Rattanlal, the brother of the detenu moved Petition No.
~·.
31 of 1981 for writ of Habeas Corpus in the High Court of Jammu
and Kashmir at Jammu. The petition came up for hearing before
siJPkEME cOVRT REPORTS (1982] j s.C.lt.

A· the learned Single Judge, who by his judgment dated December 7,
1981 rejected the same. Thereafter the detenu by the present writ
petition; moved this Court under Article 32 of the Constitution for
a writ of Habeas Corpus.

Section 8 of the Act prescribes grounds for detention, one such
B ground being to prevent any person from 'acting in any manner
prejudicial to the security ·of the State. The impugned order of
detention recites that the detenu is detained with a view to preven·
ting him from 'acting in any manner prejudicial to 'the security of
the State.' The expression 'acting in any manner prejudicial to the
security of the State' has been defined in Section 8 (3) of the Act
c to mean making preparations for using, or attempting to use, or
using or ins\igating, inciting, provoking or otherwise abetting the
use of force, to overthrew or overawe the Government established·
by the law in the State. The detenu contended before the High
Court that accepting all the activities attributed to the detenu in
the grounds of detention at their face value. the alleged prejudicial
D
activity would not fall within the ambit of the expression 'acting in
any manner prejudicial to the security of the State.' The definition
of the expression as hereinbefore extracted indicates that the person
accused of 'acting in any manner prejudical to the security of
the State' must be shown to be making preparations for using, or
E attempting to use, or using or ·instigating, inciting or provoking
or otherwise abetting the use of force, and the intention or motive
for the activity must be to overthrow or overawe the Government
established by law in the State. The learned judge of the High
Court following an earlier Division Bench judgment of the same
High Court in· Kharatilal v. State,(') negatived this contention ob-
F . serving that where the Government accusation against the dctenu is
that he had been indulging in supplying information for Pakistan
Army Intelligence and was passing on vital information pertaining to
the Army deplopmen.t etc. to that Agency, such activities were likely
to assist Pakistan in any armed aggression against the State and were
a threat to the security of the State. This view needs examination
G but as the argument was not pressed before us, we refrain from
examining the same.

Number of contentions were advanced at the hearing of this
petition but we propose to deal with only two of them which in our
H
(I) 1981 K.L.H. 71 •
•
ViiAY ltul.!AR v. J & It STATE (besai, J.)

opinion go to the root of the matter· and which, wheh accepted, in A
• our opinion, would result in invalidation.of the order .

The first contention is that the order of the District Magistrate
suffers from non-application of mind inasmuch as the date on which
he passed the impugned order of detention dated July 11, 1981, the 8
detenu was long before arrested and locked up in Jail on the allega-
tion tha\ he was suspected ·to have committed some offence under
the Enemy Agents Ordinance 8 of Samvat Year 2005, and, therefore
there was no present apprehension that the detenu, if not detained,
was likely to act in any manner prejudicial to the security of the
State. The District Magistrate passed the impugned order of
c
detention on being satisfied that with a view to preventing the
detenu from -acting in a manner prejudical to the security of the
State it was necessary to detain him. The order ex facie does not
show that the deiaining authority was aware that the detenu was
already arrested and kept in jail. If the detaining authority was
D
conscious of the fact that_ the dctenu was already arrested and
confined in jail, the order ex facie would have shown that even
though the detenu was in jail, with a vic\v to preventing him from
acting in a manner prejudicial to the security of the State it was
necessary to detain him. There is a foot note in the order that the
E
order was forwarded to the S.P., C.I.D.- Counter IntelHgence, Jammu
for execution of the order under section 3 of the Act. The further
direction was that notice of the order shall be given to Vijay Kumar
s/o Anant Ram, r/o-H. No. 609, Peer Mitha, Jammu, by reading
over and explaining the same to him in language he understands.
The detention order docs not give ,the sligbteit indication that the
detaining authority was aware that the dctcnu was already in jail
F
yet on the material placed before him he was satisfied that a deten-
tion order ought to he made. There is nothing in the order to show
that to the knowledge of the detaining authority the detenu was
already in jail for a period of more than 1b days before the date on
which he passed'the order and that such detention in the opinion of
the detaining authority was not sufficient to prevent the detenu G
from acting in a manner prejudicial to the security of the State,
and therefore power under section 8 of the Act is required io be
exercised,

H
The detenu in para 3 of his petition before this Court has
specifically averred that he was arrested on June 26 1981, the correct
528 s~PRllME cOURt RllPOtlts !1982) 3 s.c.tl.
A date being June 25, 1981, unde( a false and fabricated charge. Shri
K.S. Salathia, Deputy Secretary to Government of Jammu & Kash-
mir, Home Department, who has filed the counter affidavit has with
reference to the averments made in para 3 of the petition made a very
very ambiguous statement that 'for the purpose of J iind K Public
B Safety Act the petitioner was arrested on July 11, 1981, pursuant to
the detention order. It is no where suggested that the detaining autho-
rity was awa.re of the fact that the detenu was already. in jail and _that
keeping in view the fact the detenu was already locked up in jail yet
it was considered necessary for preventing him from acting in a
manner prejudicial to the security of the State to pass the detention
c order. It may further be pointed out that Shri A. Sahasranaman,
the District Magistrate of Jammu who has made the impugned
detention order, filed an affidavit on February 7, 1982. Of course,
in fairness to him it must be stated that this affidavit was for the
limited purpose of pointing out as to how he dealt with the case of
Hans Raj, another detenu whose detention was quashed by this
D Court. subsequent to the order of this Court. It may be noticed ia
passing that Hans Raj and the detenu were involved jointly in the
activity, which led to the detention of the detenu. Even though
this affidavit was filed for the limited purpose, it came on record
after the case was taken up for hearing by this Court and the affida-
vit at least does not throw any light on the vexed question whether
E the detaining authori:y was aware of the fact that the detenu on
being suspected of having committed a serious offence, was already
in jail for a p~riod of more than a fortnight before the date of the
impugned detention order. Preventive detention is resorted to, to
thwart future action. If the detenu is already in jail charged with
a serious offence, he is thereby prevented from acting in a manner
F prejudicial to the security . of the State. May be, in a given case
there yet may be the need to order preventive detention of a person
already in jail. But in· such a situation the detaining authority
must disclose awarness of the fact that the person against whom an
order of preventive detention is being made is to the knowledge of
the authority already in jail and yet for compelling reasons a preven-
G tive detention order needs to be made. There is nothing to indicate,
the awarer.fss of the detaining authority that detenu was already. in
jail and yet the impugned order is required to be made. This, in
our opinion, clearly exhibits non-application of mind and would
result in invalidation of the order. We,· however, do not base our
·H order ?n this ground.
VliA\' KUMAil v. 1 & K STATE (Desai, J.)

The second contention which in our opinion goes to the root A
of the matter is that there has been a violation of section 13 of the
Act. Section 13 provides as under :

"13. Grounds of order of detention to be disclosed
to persons affected by the o.rder : -(!) When a person is
detained in pursuance of a detention order, the authority B
making the order shall, as soon as may be, but not later
than.five days from the date of detention, communicate
to him the grounds on which the order has been made, and
shall afford him the earliest opportunity of making a

r representation against the order to the Government."

x x x
c

The provision contained in section 13 (I) is on par with the
constitutional protection conferred by Article 22 (5) of the Consti-
tution of India. The contention is that the obligation on the detain- D
ing authority to afford to the detenu the earliest opportunity of
making representation against the order of detention, in order not to
render it illusory simultaneously obliges the authority to whom the
representation is· made to consider the same expeditiously. Suboiis-
sion is that a statutory right conferred on the detenu enabling him
to make a representation which of necessity must be giving an
opportu'nity to point out. to the Government as to why the detention
order was not justified and that it must be revoked and the personal
liberty deprived under the detention order must be restored; is to
convince the Government to take· into consideration the facts and
contentions set out in the representation, which must imply that the
Government must consider the same. The earliest. opportunity to F
be afforded for making representation inheres 'the correspondiag
duty of the Government to consider the· representation so received
expeditiously. The reason behind enacting this provision is mani-
fest. When power to detain without trial is·exercised, the authority
exercising the power must afford an opportunity to the detenu to
convince the Go.vernment/detaining authority that the power was not
G
justifiably ex.ercised or no occasion. arose for exercise of the power.
In a punitive detention which is the end product of a trial in which
the convict participates and has lull opportunity to present his
side of the case while preventive detention ordinarily des- B
cribed as jurisdiction based on suspicion does not afford any
opportunity to the. detenu to explain his side of the matter before
(198~1 ~ s.e.i.
A he is deprived of the liberty and; therefore, so soon after the detenu
is deprived of biS personal liberty the statute makes it obligatory on
the authorities concerned to afford him an earliest opportunity to
represent bis side of the case and which inheres the corresponding
obligation on the authority to consider· the same. The word
'earliest' which qualifies the opportunity must equally qualify the
B
corresponding obligation of the State to deal with the representation
if and when made, as expeditiously as possible. The opportunity
contemplated by the section is the . opportunity to make a represen-
tation against the detention order to. the Government and therefore
ex hypothese soon after the person is- deprived of his personal
c liberty be must be afforded the earliest opportunity to make
a ·representation. The representation is to be made to the
Government. Therefore the detenu who bas already been served
with the detention order and thus deprived of his liberty would ordi-
narily be in a position to send his representation tbrough the jail
authorities. The jail authority is merely a communicating channel
because the representation has to reach the Government which
D
enjoys the power of revoking the detention order. The intermediary
authorities who are communicating authorities have also to move
wit}! an amount of promptitude so that the statutory guarantee of
affording earliest opportunity of making the representation and the
same reaching the Government is translated into action. The
E corresponding obligation of the State to consider the representation
cannot be whittled down by merely saying that much time was lost
in the transit. If the Government enacts a law like the preseni Act
empowering certain authorities to make the detention order and also
simultaneously makes a statutory provision of affording the earliest

, opportunity tci the detenu to make bis representation against his
detention, to the Government and not the detain log authority, of
necessity the State Government must gear up its own machinery to
l
'
see that in these cases the representation reaches the Government -~-
as quickly as possible and it is considered by the authorities with
equal promptitude. Aoy slackness in this behalf not properly
explained would be denial of the protection conferred by the statute
G and would result in invalidation of the order.
Reverting to the "facts of this case, the detenu who in jail from
June 25, 1981, was served with a detention or(ler on July 11, 1981,
the very day on which the detention order was made. The grounds
H of detention were served upon him on July 15, 1981. Admittedly
the detenu submitted his representation to the Superintendent of Jail
on foty 29, 1981. One K.D. Sharma, Medical Officer, Central Jail,
VIJAY KUMA!l v. J & K STATE (l>esai, J.) 531
•
Jllll)mu, Incharge Central Jail, Jammu who has filed his affidavit
dated February 6, 1982, has admitted that the detenu submitted his
represtntation addressed to the Secretary to the Government,
Home Department, on July 29, 1981. He proceeds tp assert
that the said representation in original was forwarded by post
to the Government in Srinagar vide his office No. 2595 dated
__, July 29, 1981. He further adds that a wireless message No. 2596
B
dated July 29, 1981, was al~o sent to the Government to intimate
that the representation of the detenu had been forwarded to the
'Government for appropriate action. Postal communication from
Jammu to Srinagar hardly takes two days unless it is pointed out
that there was some break down of communication. Nothing to that
effect was brought to our notice. Now, Shri Salathia has stated In
c
his counter affidavit that as no representation was received a
wireless message was sent on August 6, 1981, making reference to
the wireless communication from the Superintendent of Jail.that the
representation referred to in the wireless message of the Jail
Superintendent bas still not been received at Srinagar. He requested D
the Superintendent to send a duplicate copy of the same by air
consignment, and gave a further direction that in future all such
communications should be sent through air consignment. Be that
as it may, be says that the representation was received in the
office on August 12, 1981. The comments from S.P., C.l.D.,
Counter Intelligence were called for on August 14, 1981. He.does E
not state the date on which they were received but be says that the
case was examined and processed on August 24, 1981 i~ the office
and the file was placed before the Home Secretary on August 25,
1981, who recommended the same for approval on August 28, 1981,
and the Chief Minister (Home) rejected the representation on
August 31, 1981, and the facto( rejection of the representation was F
communicated to the detenu on September 1, 1981. There arc
two time lags which may De noticed. Representation admittedly hand-
ed in the Superintendellt of Jail on July 29, 1981 to at Jammu reached
Srinagar, the summer capital of the State on August 12, 1981, which
shows a time lag of 14 days. The second time ·lag is, from our
point of view,.more glaring. Even though the concerned office was G
made aware of the fact by the wireless message of the Superinten-
dent of Jail, Jammu, dated July 29, 1981, that a representation of
the detenu has been sent by post, the· first query about its non.
receipt came as per the wireless message dated August 6, 1981.
That can be overlooked, but it has one important message. The H
--" concerned office was aware of the fact that a representation .has
532 ,.
StJPIU!Mll c:OtJRT IU!MR1'S [I §81] 3 s.c.R.

A already been made and a duplicate was sent for. With the back-
ground of this knowledge trace the movement of the representa-
tion from the date of its admitted receipt being· Augu5t 12, 1981.
I(the representation was received on August 12, 1981, and the same
office dis~osed it of on August 31, 1981, there has been a time lag of
19 days and the explanation in that behalf in the affidavit of
B Shri Salathia is far from convincing. In . our opinion, in the facts
of this case this delay, apart from being inordinate, is not
explained on any convincing grounds.

In Khudi Ram Das v. State of West Bengal,(') this Court held that
one of the basic requirements of clause (5) of Article 22 is that the
c authority making the order of detention must afford the detenu the
earliest opportunity of making a representation against the order of
detention and this requirement would become illusory unless there is
a corresponding obligation on the detaining authority to cbnsider the
representation of the detenu as early as possible. Thus, in the facts
of this case we are not satisfied that the representation was dealt
D with as early as possible or as expeditiously as possible, and, there-·
fore, there would be contravention of section 13 of the Act which
would result in the invalidation of the order.

These are the reasons which had prompted us to quash and
set aside the detention order.
E.
P.B.R. Petition allowed•.

(1) [197S] 2 s.c.c. 81.
1