Jammu & Kashmir High Court
Tariq Ahmad Sofi vs State Of J&K; & Ors on 7 March, 2017
Bench: Ramalingam Sudhakar, Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA(HC) no.04/2017 Date of decision: 07.03.2017
c/w LPA(HC) nos.05/2017
06/2017 and 09/2017
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i) Tariq Ahmad Sofi v. State of J&K & ors
ii) Shahid Ahmad Bhat v. State of J&K & ors.
iii) Tajamul Islam Mir v. State of J&K & ors.
iv) Arif Rashid Shah v. State of J&K & ors.
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Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
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Appearing counsel:
For Petitioners: Mr. M. A. Qayoom, Advocate.
For Respondents: Mr. R. A. Khan, AAG, and
Mr. Irfan Andleeb, Dy. AG.
_________________________________________________________ Whether approved for reporting: Yes _________________________________________________________ Per Magrey, J:
These four Letters Patent Appeals arise out of the decision of the learned Writ Court dated 01.02.2017 rendered in HCP no.361/2016, Shahid Ahmad Bhat v. State of J&K & ors., holding that since the order extending the period of detention was neither on record nor the same was challenged, no effective relief could be granted to the petitioner, and, consequently, disposing of the habeas corpus petition with liberty to the petitioner-appellant to assail the detention orders and the orders of extension. The learned Writ Court followed the above ratio in three other habeas corpus petitions, being HC nos.294/2016, 377/2016, 441/2016 on the very same day. The appellants are aggrieved thereby.
2. Given the nature of the controversy involved herein, we are not going into the details factual concerning the cases of the detainees; it would suffice to mention that the four detenues involved in the four LPAs have been detained by four different detention orders issued by the respective District Magistrates in exercise of their powers vested in them under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, as amended from time to time (hereinafter referred to as the Act). These detention orders have been challenged on behalf of the detainees by their respective immediate relatives on numerous grounds taken in the respective petitions.
3. During the pendency of the above habeas corpus petitions, the Government in the Home Department in exercise of the powers conferred by Section 18 (1)(a)(i) read with clause (a) of sub-section (1) of Section 18 of the Act, passed identical orders vis-a-vis all the four detainees, directing that they be detained for a further period of three months.
4. In the course of hearing of the Heabus Corpus Petitions, an objection was taken on behalf of the State that since the detention orders had been extended for a further period of three months by separate orders passed under Section 18 of the Act, and since these extension orders have neither been challenged, nor brought on record, no relief could be granted to the writ-petitioners. That they should amend their respective petitions and challenge the extension orders as well. This argument on behalf of the State-respondents found favour with the learned Writ Court which, by its judgment dated 01.02.2017, disposed of the habeas corpus petition, HCP no.361/2016, with liberty to the petitioner as already mentioned in the very first paragraph above, and followed the same view in the three other habeas corpus petitions listed before the Court on that day. Since the learned Writ Court has furnished its reasons in the judgment passed in HCP no.361/2016, we proceed in this judgment hereinafter substantially with reference to the said case only.
5. From a perusal of the judgment, it is revealed that on behalf of the petitioner-appellant-detenue it was submitted before the learned Writ Court that it was not necessary for the detenue to challenge the extension order by which the period of detention had been extended under Section 18 of the Act, since, the detenue had been detained by an order of detention in exercise of the powers under Section 8 and not under Section 18 of the Act.
6. The learned Writ Court in the impugned judgment turned down the argument raised on behalf of the petitioner-appellant-detenue and held as under:
"6. Admittedly, initially an order of detention was passed for a period of three months on 16.09.2016 which has expired on 15.12.2016, and it is also not in dispute that on 15.12.2016 itself another order of detention has been passed. Admittedly, the aforesaid order is not on record and has not been challenged by the petitioner. The Supreme Court in Surinder Singh v. Central Government (AIR 1980 SC 2166) has held that copy of the impugned order has to be placed on record and in the absence of same the High Court is not justified in quashing the same.
(I) It is pertinent to mention here that it is neither pleaded by the petitioner nor has it been argued that the initial order of detention dated 16.09.2016 is ab initio void.
Therefore, the initial order of detention as well as subsequent order of extension of period of detention dated 15.12.2016 cannot be termed as ab initio void. (II) Even though the initial order of detention as well as order dated 15.12.2016 extending the period of detention may have birth mark of illegality on its forehead, yet the same is required to be challenged. It has been held by the Supreme Court in State of Kerala v. M. K. Kunhikannan Nambiar [(1996) 1 SCC 435] that even a void order is required to be challenged and until and unless its validity is challenged the same exists in law.
(III) In the instant case, until and unless the order dated 15.12.2016 is quashed no effective relief can be granted to the petitioner as the petitioner is continuing under detention by virtue of subsequent order dated 15.12.2016 as the original order of detention has lost its efficacy.
7. So far as the reliance placed on the decision in Mrinal Roy v. State of West Bengal (AIR 1974 SC 1796) supra by the petitioner is concerned, the same is of no assistance to the petitioner in the fact situation as in the aforesaid case, during the pendency of the habeas corpus petition, the detenu was released and on the same day was detained again on fresh grounds. In the aforesaid context, it was held that the subsequent order can be quashed even though it has not been assailed by the detenue, which is not the case of the petitioner as the petitioner continued under detention.
8. The reliance placed by learned counsel for the petitioner on the orders passed in HCP Nos. 146/2016 and 195/2016, the same is of again no assistance to the petitioner as the orders of extension of the period of detention of the petitioners in the aforesaid case were taken on record by the Court.
9. In view of the preceding analysis, it is not necessary to deal with the matter on merits. Since the order of extension of period of detention is neither on record nor the same is challenged, therefore, no effective relief can be granted to the petitioner. The writ petition is accordingly disposed of with liberty to the petitioner to assail the orders dated 16.09.2016 and 15.12.2016."
7. Analysing the impugned judgment, broadly speaking, the learned Writ Court has held as under:
i) that it was necessary for the petitioner to challenge the order extending the detention of the detenue under Section 18 of the Act, and, in this connection, the learned Writ Court derived support from the ratio of the Supreme Court decision in Surinder Singh v. Central Government (AIR 1980 SC 2166);
ii) that, as it had neither been pleaded nor argued that the initial order of detention was ab initio void, the subsequent extension order could not be declared ab initio void;
iii) that even if the initial order of detention and the order extending the detention bone the birth mark of illegality, the detenue would continue to be under detention in terms of the extension order unless and until its validity is also challenged. That in absence of a challenge to the order extending the detention, no effective relief could be granted to the petitioner. The learned Writ Court has derived support from the decision of the Supreme Court in State of Kerala v. M. K. Kunhikannan Nambiar [(1996) 1 SCC 435;
iv) that consequent upon the issue of the order extending the detention the original order of detention had lost its efficacy and detention cannot be interfered if the extension order is not challenged.
8. Mr. M. A. Qayoom, learned counsel for the appellants, submitted that the view expressed and the findings recorded by the learned Writ Court, as enumerated above, are against the law as settled by the Supreme Court in cases of preventive detention. It is opposed to the mandate of the Article 22 (5) of the Constitution of India and the provisions of the J&K Public Safety Act. Learned counsel, relying on the judgment of the Supreme Court in Mrinal Roy v State of W. B., AIR 1974 SC 1796, and Competent Authority, Ahmedabad v Amritlal Chandimal Jain, AIR 1998 SC 2083, submitted that when a person is in preventive detention, what is required to be challenged by him before the Court is his detention. He further submitted that the learned Writ Court wrongly distinguished the judgment of the Supreme Court in Mrinal Roy v State of W. B (supra), holding that the detenu therein was detained again on fresh grounds; whereas the fact of the matter is that the second order of detention therein was passed on precisely the same grounds of detention, not fresh grounds and court should interference on illegal detention without laying emphasis on technicalities.
9. The learned counsel for the appellants next submitted that once the Court takes cognizance of an application filed as writ of habeas corpus and issues notice to the respondents, the burden to show to the Court that the detention is legally justified and valid is on the respondents. A duty is cast on the State through the concerned functionaries / respondents to satisfy the Court that the detenue's individual liberty needs to be curtailed and that the procedural requirements as per provisions of the Act have been duly complied. That the detention of is legal and is in conformity not only with the mandatory requirements of the law but also with the requirements implicit in the relevant clauses of Article 22 of the Constitution of India.
Mr. Qayoom submitted that, in the event the Court finds that any of the requirements has not been fulfilled, the Court would not stay its hand in holding the detention as illegal. To buttress this argument, the learned counsel relied upon and cited the decisions of the Supreme Court in Icchu Devi v Union of India, AIR 1980 SC 1983; Mohinuddin v. Dist. Magistrate, Beed, AIR 1987 S C 1977; and Dhananjay Sharma v State of Haryana, AIR 1995 SC 1795.
10. The learned counsel for the appellant further submitted that though normally writ petitions are decided on the basis of pleadings in affidavits and a petitioner is not permitted to raise grounds not taken in the petition at the hearing, the said rule does not apply to a petition for issue of a writ of habeas corpus. The habeas corpus petitions are to be decided by adopting a summary procedure and it is enough for a detenu or a next friend to say that detenue is in wrongful detention. The burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful. He submitted that, in fact, once the rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. The learned counsel in this connection cited and relied upon the decision of the Supreme Court in Icchu Devi v Union of India (supra) and Mohinuddin v. Dist. Magistrate, Beed (supra).
11. The learned counsel submitted that the learned Writ Court has fallen into a grave error while applying the law laid down by the Supreme Court in Surinder Singh v. Central Government, AIR 1980 SC 2166, and State of Kerala v. M. K. Kunhikannan Nambiar, (1996) 1 SCC
435. Learned counsel also submitted that there was no ground or argument raised before the learned Writ Court that the impugned order was void ab initio yet the learned Writ Court has proceeded to return a finding thereon. The learned counsel for the appellants submitted that the impugned judgment is contrary to constitutional mandate and also against law and, therefore, has to be set aside.
12. Mr. R. A. Khan, learned AAG, submitted that since the appellants did not challenge orders extending their period of detention, the learned Writ Court was right in disposing of the habeas corpus petition giving liberty to the appellants to challenge to the proceedings.
13. We have heard the respective counsels at length, perused the impugned judgment passed by the learned Writ Court and the legal implication.
14. The precise point in issue before us in these LPAs is limited to the question whether, in order to enable the Court to consider a habeas corpus petition, it is obligatory that the detenue should challenge the Government order issued under Section 18 of the Jammu and Kashmir Public Safety Act, 1978, extending the period of detention passed under Section 8 of the Act?
15. It is to be borne in mind that preventive detention has been held to be a necessary evil, and liberty of an individual is curtailed, within reasonable bounds, for the good of the people. However, there are certain safeguards to be fulfilled while detaining a person under the law providing for such detention. In so far as the Jammu and Kashmir Public Safety Act 1978 is concerned, Chapter IV thereof, deals with the power to make an order detaining a person. Section 8 reads as follows:-
"8. Detention of certain persons:
The Government may -
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order;
(a-1) if satisfied with respect to any person that with a view to preventing him from --
(i)...
(ii)...
(iii)...
(iv)...
(v)...
(b)...
it is necessary so to do, make an order directing that such person be detained.
Any of the following officers, namely--
Divisional Commissioners District Magistrate, may, if satisfied as provided in sub-clauses (i) and (ii) of clause (a) or (a-1) of sub-section (1) exercise the powers conferred by the said sub- section.
(3)...
(4)..."
From a reading of the aforesaid provision it becomes axiomatic that the Government can detain a person when it is satisfied that, with a view to preventing that person from acting in any manner prejudicial to the security of the State or maintenance of the public order, it may do so. Section 8(2) of the Act also confers the such power on the Divisional Commissioners/the District Magistrates.
The condition precedent [rather the sole condition of lawful detention, as held by the Supreme Court in A. K. Gopalan v State of Madras, AIR 1950 SC 27, para 23, (a six Judges Bench judgment)] for the exercise of such power of preventive detention conferred on the prescribed authorities in terms of Section 8 of the Act is the satisfaction of such authority, that the person has to be detained for a purpose reflected in the relevant Act. This satisfaction, which is fundamental to the detention of a person, is relatable to the facts set out in the grounds on which such satisfaction is arrived at. This results in an order of detention which, inter alia, is serve with a warrant of arrest for the detention.
When a detenue approaches the Court with a habeas corpus petition challenging such an order, he actually challenges his detention questioning the basis for the detention and the satisfaction of the detaining authority. The Court examines whether the requisite satisfaction has been arrived at by the authority on proper application of mind and in accordance with the settled principles of law. It may be mentioned here that courts by judicial decisions have carved out areas within which the validity of subjective satisfaction is tested judicially. If the court finds that there is no such satisfaction is accorded or that the satisfaction recorded in the detention order could not have been arrived at on the basis of the grounds of detention and the material referred to therein, the condition precedent to the exercise of the power is not fulfilled. Consequently, the exercise of the power would be bad and the detention of the person concerned will be illegal and unlawful.
16. There is no other provision in the Act akin to Section 8 thereof in the instant petition. Therefore, if a person has to be detained, he can be detained only on any of the grounds mentioned in Section 8 of the Act, by the authorities enumerated therein.
17. However, keeping in view the supreme nature of the right and liberty guaranteed by the Constitution of India, the Legislature in its wisdom has provided certain procedural safeguards. The Act provides for relief against mechanical and/or wrongful exercise of such power. The first safeguard is that when a detention order is made by an officer mentioned in sub-section (2) of Section 8, it has to be mandatorily approved by the Government within 12 days of its passing as provided in sub-section (4) of Section 8. No such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the Government. As the language of this provision of law suggests, a duty is cast on the Government to fully satisfy itself that the detaining authority has rightly and lawfully attained its satisfaction and has detained the person concerned. The approval of the detention order, in effect and in essence, is approval granted to the satisfaction accorded by the detaining authority. The satisfaction of the detaining authority while passing the detention order on a person concerned is challenged in the habeas corpus petition. It subsist throughout the proceedings. The detainee would not be required to challenge the approval order which is passed by the Government while fulfillment of the above procedural safeguards provided by the Act. A constitutional duty is cast on the State to ensure that no citizen is wrongfully detained. Though this approval is material to the detention of the detenue in the sense that, if it is not accorded, the detention order would lose its force after the twelfth day from the date of its passing. Yet the detenue would not be required to challenge the same; instead, the respondents would be bound to show and satisfy the Court, which is seized of the habeas corpus petition, that the procedural safeguards and requirement of law has duly complied.
18. Then, Section 15 of the Act provides that in every case, where a detention order has been made under the Act, the Government shall, within four weeks from the date of detention under the order, place it before the Advisory Board, constituted by it under Section 14 of the Act, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and, in case where the order has been made on a report by an officer, the report by such officer under sub- section (4) of Section 8. When the Advisory Board after considering the requisite material, including the representation made by the detenue makes a report (within six weeks from the date of detention) that there is, in its opinion, sufficient cause for such detention. The opinion of the Advisory Board in effect decides the representation of the detenue for or against him. But the detenue need not necessarily challenge the opinion as it relates to the satisfaction initially arrived at by the detaining authority. However, the official respondents would have to satisfy the Court that the constitutional safeguard has been duly and strictly fulfilled and followed.
19. Section 17 of the Act provides that in a case where the Advisory Board has reported that there is, in its opinion, 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. This confirmation provided under Section 17 of the Act is an approval both to the detention and the satisfaction originally attained by the detaining authority. In the event also a fresh orders comes into existence yet it will be open to the detenue to raise any issue on this in the pending Heabus Corpus petition. The need to challenge the same on any ground is detenue's option.
20. We come to Section 18 of the Act which is the bone of contention presently. Section 18 prescribes the maximum period of detention for which a citizen can be detained. Since the controversy relates to an order passed pursuant to this Section, it would be appropriate to refer to this Section, insofar as it is relevant.
"18. Maximum period of detention (1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall be -
(a) three months in the first instance which may be extended upto twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order;
(a-1)...
(b)...
(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or to extend the period of detention of a foreigner in case his expulsion from the State has not been made possible."
21. Before adverting to the above provision, it be mentioned here that once an authority mentioned in sub-section (2) of Section 8 of the Act exercises the power conferred on it thereunder and fulfils the procedural safeguards of furnishing grounds of detention and the relevant relied upon material to the detenue, such authority has limited role vis-a-vis the detention of the concerned, as the purpose of conferment of the power under Section 8 stands accomplished. This becomes clear from Section 19 of the Act as well. Thereafter, all other safeguards enshrined in Article 22(5) of the Constitution of India and requirements prescribed by the relevant law has to be fulfilled by the Government.
22. Coming back to Section 18 of the Act, as seen above, it says that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17 shall be three months in the first instance which may be extended up to twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order. The provision speaks of the detention under the order confirmed under Section 17 of the Act. Obviously, it refers to the initial detention order which is the formalised shape of the satisfaction attained at the initial stage by the detaining authority. The provision uses the words "which may be extended". The word "extend" means to make larger or longer in space or time (Concise Oxford Dictionary, Tenth Edition). So the Government in terms of the provision of Section 18 of the Act does not pass any fresh order of detention; it only makes the operation of the original detention order longer in time. In other words and, in terms of the Section 17 of the Act, the Government only orders continuation of the detention as ordered by the detaining authority; it does not pass a fresh order of detention. Once that initial order of detention is already under challenge, the detainee would not be required to challenge the order which continues the detention for any further period. Furthermore, all these procedural steps, safeguards or requirements provided by the Act, are provided only at ensuring that the person detained is not wrongfully and unlawfully detained. The checks and balance are provided so that remedial measures can be taken at all stages and it includes revocation of the detention as well.
23. In view of the above, the notion sought to be propounded by the State counsel that with the passing of Government order extending the period of detention, the initial order of detention, which formalizes the satisfaction of the detaining authority, loses its efficacy, otherwise sounds illogical, and contrary to the scheme and provisions of preventive detention law. Besides it is antithetic to the constitutional right and scheme of the provisions of the Act.
It is true that the provision of Section 18 of the Act confers discretion on the Government whether or not to extend the detention of a detenue beyond the initial period of three months, however such discretion has to be exercised on some kind of satisfaction to be attained by the Government to extend or not to extend the detention period, and for how long. However such satisfaction, in our view, would be founded inter alia on the opinion of the Advisory Board and relatable to the grounds of detention already served on the detenue. Consequently, the detenue would not be obliged to challenge the same, especially when there is no provision in the Act providing that such order of extension has to be executed on the detenue. Of course, the respondents would, again, need to satisfy the Court that the discretion has been exercised properly and in accordance with law. Furthermore, as would be shown hereafter, it is settled law that the detaining authority and the Government, as the case may be, has to place all the relevant facts before the Court to show that the requirements of various provisions of the preventive detention Act have been duly and fully discharged, and this would include the facts relating to the exercise of the aforesaid discretion. This burden wholly lies on the detaining authority/respondents state and not on the detenue.
24. Summarizing the above discussion, we are of the considered opinion that any orders issued by the Government in fulfilment of various procedural safeguards and requirements provided by the provisions of the Act would not give rise to a fresh cause of action in the sense that, unless a detenue challenges the same, the Court would not be able to grant an effective relief in the Habeas corpus petition challenging the original detention order. It is true that at each stage there has to be an application of mind and some satisfaction attained by the Government, but the orders passed by the Government in relation thereto necessarily need not be challenged since what is required to be challenged in a habeas corpus petition is the detention of the person. In fact, being the custodian of the fundamental rights of the citizens, it is the Court which has to satisfy itself that these procedural safeguards and requirements of law have been followed and the breach thereof vitiates the order of detention.
25. It is to be borne in mind that a writ of habeas corpus is constitutional privilege to secure individual liberty. The writ of Heabus Corpus provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the person before the court so as to enable the court to decide the validity, jurisdiction or justification for such detention. The principal aim in a writ of Heabus Corpus is to ensure swift judicial review of the alleged unlawful detention of a detainee. [Vide para 25, State of Maharashrtra v. Bhaurao Punabrao Gawande, (2008) 3 SCC 613]. Again, in Sapmawia v. Deputy Commissioner, 1970 (2) SCWR 329 : 1971 Cri. LJ (N) 42 , it was held that writ of habeas corpus is a prerogative writ by which the causes and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty was according to the procedure established by law, the person is entitled to his liberty
26. So far as the judgments cited at Bar are concerned, Mrinal Roy v State of W. B., AIR 1974 SC 1796, was a petition for issuance of a writ of habeas corpus by Mrinal Roy, who had been ordered by the Commissioner of Police, Calcutta, to be detained under Section 3 of the Maintenance of Internal Security Act, 1971 (MISA). During the pendency of the petition, the Supreme Court delivered its decision in another petition, Shambu Nath v State of West Bengal (reported in AIR 1973 SC 1425). In view of that judgment, the petitioner, Mrinal Roy, was released under the orders of the State Government. On the same day, fresh order for detention of the petitioner was made by the Commissioner of Police, Calcutta under Section 3 of MISA on the very same grounds of detention on which the earlier order of detention had been made. The Heabus Corpus petition which had been filed by the petitioner, Mrinal Roy, was still pending before the Supreme Court. When it came up for hearing, it was argued on behalf of the respondents that when the petition was sent from jail by the petitioner, the only order of detention which was in force against him was the one dated 06.12.1971 and that the subsequent order of detention was made during the pendency of the petition. It was contended before the Court that as the subsequent order had not been assailed by the petitioner, the petition should be dismissed. The Supreme Court in context of such facts and arguments, in paragraph 4 of the judgment, inter alia, held as under:
"4. ...What has been challenged by the petitioner is his detention. If fresh facts come into existence during the pendency of the petition and those facts also reveal that the detention of the petitioner is not in accordance with law, this Court would not stay its hand in directing the release of the petitioner. It has to be borne in mind that the relief sought by the petitioner is for the issuance of a writ of habeas corpus. The petition has been sent by him from Jail. We would not normally allow a technical plea to prevail in a matter which affects the liberty of the subject..."
27. In Icchu Devi v Union of India, AIR 1980 SC 1983, the Supreme Court, inter alia, laid down as under:
"4. ...[I]n case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorizing such detention. Vide Niranjan Singh v State of Madhya Pradesh, AIR 1972 SC 2215; Sheikh Hanif v State of West Bengal (1974) 2 SCR 258 : (AIR 1974 SC 679) and Dulal Roy v.
The District Magistrate, Burdwan (1975) 3 SCR 186 : (AIR 1975 SC 1508). It has also been insisted by this Court that in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition. Vide Nazamuddin v. The State of West Bengal (1975) 2 SCR 593 : (AIR 1974 SC 2353). Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of West Bengal (1974) 3 SCR 379: (AIR 1974 SC 917) and Kudiram Das v. State of West Bengal (1975) 2 SC R 832 : (AIR 1975 SC 550).
5. ...The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law...."
28. In Mohinuddin v. Dist. Magistrate, Beed, AIR 1987 S C 1977, the detainee had challenged the detention order passed against him on the grounds, inter alia, that there was infraction of the constitutional safeguards enshrined in Art. 22(5) read with Section 3 of the National Security Act, 1980 inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation. The High Court of Bombay dismissed the writ petition mainly on the ground of imperfect pleadings. On appeal, the Supreme Court in para 4 of its judgment laid down as under:
"4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenue was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed impugned order of detention and he must explain his subjective satisfaction and the grounds therefor, and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorized under the Rules of Business framed by the Governor under Art. 166 of the Constitution to pass orders on behalf of the Government in such matters."
The Supreme Court while laying down the above law, relied upon its earlier decisions in Niranjan Singh v State of Madhya Pradesh, (1973) 1 SCR 691 : AIR 1972 SC 2215; Habibullah Khan v State of West Bengal, (1974) 4 SCC 275 : AIR 1974 SC 493; Jagdish Prasad v. State of Bihar, (1974) 4 SCC 455 : AIR 1974 SC 911 and Mohd. Alam v State of West Bengal, (1974) 4 SCC 463 : AIR 1974 SC 917.
29. Dhananjay Sharma v State of Haryana, AIR 1995 SC 1795, is a case which basically related to Contempt of Court. There, in a petition for habeas corpus, notice issued was accepted in the open Court by the Standing Counsel for the State of Haryana. A direction was issued by the Supreme Court to respondent no.3 to produce the detenu and the taxi driver. Respondents 3 to 5 were also directed to file affidavit indicating the circumstances under which they took the detenu and the driver of the taxi car into custody. These respondents in their affidavit denied the allegations. The Court then directed respondent no.1, Home Secretary, Government of Haryana, through his counsel, to trace the detenu and the taxi driver, and produce them before the Court on the following day. However, no affidavit was filed by the Home Secretary. Some new developments took place in the case thereafter and the Supreme Court passed numerous appropriate directions and orders in relation thereto. So far as the conduct of the Commissioner and Secretary to the Government of Haryana, Home Department, was concerned, the Supreme Court in paragraph 49 of the judgment, inter alia, laid down as under:
"49. ...Whenever a question is raised regarding the illegal detention of a citizen in a writ of Habeas Corpus and the Court issues the rule nisi, a duty is cast on the State through its functionaries and particularly those who are arrayed as respondents to the writ petition to satisfy the Court that the detention of the citizen was legal and in conformity not only with the mandatory requirements of the law but also with the requirements implicit in Art. 22(5) of the Constitution of India. It is obligatory on the part of the respondent State to place before the Court all relevant facts relating to the impugned detention truly, clearly and with utmost fairness, through an affidavit. An affidavit in reply is required to be filed by the respondent not as a mere formality but to truly assist the Court in drawing permissible inferences from the rival contentions. The right of personal liberty of a citizen is all too precious and no one can be permitted to interfere with it except in accordance with the procedure established by law. The State owes an obligation to the Courts to place all relevant facts before the Court in all cases where interference is alleged by a citizen with his fundamental right..."
30. In Competent Authority, Ahmedabad v Amritlal Chandimal Jain, AIR 1998 SC 2083, the Supreme Court laid down that "When there is challenge to the legality of detention in writ of habeas corpus the challenge is in effect to the legality and validity of the grounds on which the order of detention is made".
31. The substance of the law thus laid down by the Supreme Court in the above decisions is that in a writ of habeas corpus what is challenged is the detention of a detainee and that the practice evolved by the Court is not to follow strict rules of pleading. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition and that it is improper on the part of the High Court to disallow such a petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the hearing, but this rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for a detainee to say that he is under wrongful detention. The Court has consistently shown great anxiety for personal liberty and insisted that in answer to the rule issued by the Court, the detaining authority must place all the relevant facts before the Court which would show and satisfy the Court that the detention is in accordance with provisions of the Act. Not only that, it has also been laid down that once the rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. The burden of showing that the detention is in accordance with the procedure established by law has always been placed on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. Whenever a question is raised regarding the illegal detention of a citizen in a writ of habeas corpus and the Court issues the rule nisi, a duty is cast on the State through its functionaries and particularly those who are arrayed as respondents to the writ petition to satisfy the Court that the detention of the citizen was legal and in conformity not only with the mandatory requirements of the law but also with the requirements implicit in Art. 22(5) of the Constitution of India. This constitutional right of life and personal liberty is placed on such a high pedestal by the Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law. And even if fresh facts come into existence during the pendency of the petition and those facts also reveal that the detention of the petitioner is not in accordance with law, the Court would not stay its hand in directing the release of the petitioner and that in a matter which affects the liberty of a citizen technical plea would not be allowed to prevail.
32. Applying the law, as settled and laid down by the Supreme Court, we are of the considered opinion that the learned Writ Court was not right in holding that the appellants were required to place on record and challenge the orders passed by the Government under Section 18 of the Act extending their period of detention and then alone the Court could grant any effective relief in their favour. The rules of procedure applicable in a writ for certiorari or mandamus are not attracted in a petition for issuance of writ of habeas corpus. Since the burden to show and satisfy, the Court that the detention is not wrongful lies on the Government, the learned Writ Court was also not right in holding that since the appellants had not pleaded or argued that the initial order of detention was ab initio void, therefore, the initial order of detention as well as subsequent order extending the period of detention could not be termed as ab initio void. The learned Writ Court was also not correct in holding that even if the original detention order was quashed, the detainee would continue to be in detention unless the order passed by the Government under Section 18 of the Act, extending his detention, is quashed.
Once the original detention order is quashed, a detainee would be entitled to immediate release. It is reiterated that the responsibility to show to the Court that the detention was in accordance with law is cast on the respondents State. The Court will ensure that a citizen is not deprived of his liberty except in accordance with the procedure established by law. Last, but not the least the trial of the writ court that by issuance of an order under Section 18 of the Act, extending the period of detention of a detainee, the original order of detention lose its efficacy is not tenable in law. This finding has no legal basis.
33. In light of all what has been discussed and the apex court rulings on preventive detention referred to above we are of the considered view that the impugned judgment dated 01.02.2017 rendered by the learned Writ Court in HCP no.361/2016, Shahid Ahmad Bhat v. State of J&K & ors, does not state the correct position in the law. The same is, therefore, set aside. Consequently, the orders passed on 01.02.2017 by the learned Single Judge in three other habeas corpus petitions, viz., HC nos.294/2016, 377/2016, 441/2016, following the earlier decision in HCP no.361/2016, are also set aside. The Heabus Corpus Petition are restored to file.
34. These appeals are, allowed. No order as to cost.
35. The Registry is directed to list the habeas corpus petitions for hearing before an appropriate Bench in the next available cause list.
36. Registry is directed to place a copy of judgment on three of the LPAs.
Per Ramalingham Sudhakar, J
37. I have perused the reasoning given by brother Justice Ali Mohammad Magrey. I am in respectful agreement with it.
38. Since the issue that arises in the present appeal relates to constitutional rights of the detenue, the order of the learned Single Judge declining to interfere with the detention order primarily concluding that the detention order lapses because of the extension order, has far reaching consequences Therefore, I am inclined to supplement the reasoning of brother Justice Magrey as follows.
39. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, enables the detaining authority to pass a detention order and Section 18 of the said Act empowers the Authority to pass an order of extending the original detention order. One extension order passed by the detaining authority in respect of one of the cases is reproduced as under:
"Whereas District Magistrate, Anantnag, in exercise of powers conferred u/s 8(1) (a) (i) of the J&K Public Safety Act, 1978, vide order No.48/DMA/PSA/DET/2016 dated 16-09- 2016, ordered the detention of Shahid Ahmad Bhat S/o Ghulam Mohammad Bhat R/o Semthan, Tehsil Bejbehara, District Anantnag, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and directed his lodgement in District Jail, Kathua; and Whereas, the Government vide order No.HOME/PB- V/1208 of 2016 dated 23-09-2016 approved the order dated 16- 09-2016 issued by the District Magistrate, Anantnag, and the said order came to be executed on 19-09-2016; and Whereas, on receipt of opinion from the State Advisory Board, the Government vide order No.HOME/PB-V/2303 dated 29-11-2016, confirmed the aforesaid Order dated 16-09- 2016 and directed that the detenue be detained for a period of three months in the first instance; and Whereas, the period of detention of the detenue is scheduled to expire on 18-12-2016 and IGP CID vide his above quoted reference has recommended extension in the period of detention in respect of the above detenue, under the aforesaid Act.
Now, therefore, in exercise of powers conferred by section 8(1) (a) (i) read with clause (a) of sub-section (1) of Section 18 of the J&K PSA, 1978 as amended in 2012, the Government hereby directs that Shahid Ahmad Bhat S/o Ghulam Mohammad Bhat R/o Semthan, TEhsil Bejbehara, District Anantnag, be detained for a further period of three months and loeged in District Jail, Kathua.
By order of the Government of Jammu and Kashmir.
Sd/-
Principal Secretary to the Government Home Department Dated 15-12-2016"
40. Section 8 (1) (a) and Section 18 of the Jammu and Kashmir Public Safety Act are reproduced as under:
"Section 8(1) (a): 8. Detention of certain persons.-
(1) The Government may -
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to
(i) the security of the State or the maintenance of the public order, or
(ii) omitted;
Section 18. Maximum period of detention.- (1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall be -
(a) [three months in the first instance which may be extended up to twelve months] from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order;
(a-1) twelve months from the date of detention in the case of persons indulging in smuggling of timber; and
(b) [six months in the first instance which may be extended up to two years] from the date of detention in the case of persons acting in any manner prejudicial to the security of the State. (2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or extend the period of detention of a foreigner in case his expulsion from the State has not been made possible."
41. Let us now examine the language of Section 18 of the Jammu and Kashmir Public Safety Act, 1978. It says that the order of detention may be extended upto twelve months from the date of detention. There is, therefore, a difference between an order of detention and an order extending the detention order. The extension of a detention order cannot partake the characteristics of a detention order. The detenue has to necessarily challenge his detention order and that has been done. The detenue is entitled to take all relevant grounds as may be advised including procedural lapses.
42. If the procedural formalities have not been complied, it may also give rise to a ground to challenge the order of detention. However, an order extending the detention order cannot be understood as a detention order. Once a detention order has been passed, all other proceedings following thereon are consequent to the detention order.
43. The Government Order extending the detention for a further period is passed in terms of Sub section 18 of the Jammu and Kashmir Public Safety Act, 1978, however, it draws its powers from Section 8 of the said Act meaning thereby that independently Section 18 has no role to play. Having said that, all that the order in terms of Section 18 states is that the authority concerned has recommended for the extension of the period of detention. Consequently, it is extended.
44. There is no material placed along with the extension order in the form of grounds of detention to give a fresh cause of action for the detenue to challenge it as he would challenge a detention order.
45. However, the detenue can challenge the extension order if there is any inherent infirmity in the same. In this case, we are concerned with a finding that if the extension order is not challenged the detention order will lapse. In my considered view, it does not. The detention order lapses under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, after the specified period mentioned therein. It gets extended in terms of Section 18 of the said Act. By the order passed in terms of Section 18, what is made valid is the original detention order passed under Section 8 of the Act for a further period. The conclusion that the order passed under Section 18 of the Jammu and Kashmir Public Safety Act, 1978, also should be challenged cannot be justified because detention order can be passed only under Section 8 and not under Section 18 of the Act. Section 18 has no independent application in the absence of Section 8 and, therefore, the reasoning of the learned Single Judge cannot be countenanced.
46. The order extending the detention does not become a detention order and, therefore, the finding that the detention order loses its validity consequent to the extension order is not the correct position of law. The Section 18 does not have the characteristics of a detention order passed in terms of Section 8 (1) of the Act. In fact there is nothing in the extension order to show that there are reasons or grounds to support the detention order as is the case of a detention order passed in terms of Section 8 in the present case. In any event, arguing that there is some material, that is not enclosed as part of the Section 18 order.
47. The Habeas Corpus petition will not lose its validity nor can it be closed merely because the extension order (Section 18 Order) has not been challenged.
48. It is the prerogative of the detenue to challenge the extension order if there is any infirmity in the Section 18 order as well. The original detention order does not lose its sting and remains as such. The Section 18 extension order extending the period of the original detention is an extension order and nothing more. If the original detention order is challenged that would suffice. Needless to mention that it is for the State to place the extension order if the detention continues.
49. In this view of the matter, the finding of the learned single Judge of closing the Habeas Corpus petition on the ground that the order of extension has not been challenged may not be the correct position of law.
(Ali Mohammad Magrey) (Ramalingam Sudhakar)
Judge Judge
Srinagar,
07.03.2017
Syed Ayaz Hussain, Secretary