MANJIT SINGH Vs. STATE OF JAMMU

JUDGEMENT

(1.) Petitioner Manjit Singh, son of Gurbans Singh, resident of Bhatpora Rajiabad of District Baramulla in the State of Jammu and Kashmir was detained on 6/7-5-86 by the State of Jammu and Kashmir in exercise of power under section 8 of the Jammu and Kashmir Public Safety Act, 1978. After his detention, he was lodged in Jammu Jail. By order dated 21.11.1986 passed by the Home Secretary of that State, the petitioner has been transferred to Central Jail, Jabalpur, in the State of Madhya Pradesh. He challenges this order of transfer on various counts by this petition under Art. 226 of the Constitution of India

(2.) Section 8 of the Jammu and Kashmir Public Safety Act empowers the Government to detain any person on various ground mentioned in that section. The provisions of section 10 regulate the place and conditions of detention. Sub section (b) of section 10 permits removal of the detenu from one place to another in the State by order of the Government. On 7-3-1986, the Government of Jammu and Kashmir issued a proclamation under section 92 of the Constitution of Jammu and Kashmir whereby, among others, the provisions of sections 74, 75 and 76, subsections (3) and (4) of section 77, and proviso to section 78, relating to legislative procedure, were suspended. The Governor assumed to himself functions of the Government of the State, as mentioned in that proclamation. Not only this, the Governor of the State, in exercise of powers under sub-section (2) of section 91 of the Constitution, also enacted Jammu and Kashmir Public Safety (Amendment) Act, 19156 (Governors Act No. XI of 1986), which came into force immediately on its publication in the Government Gazette dated 29.5-1986. By that Amendment Act, the words In the State; appearing in section 10(b) of the Jammu and Kashmir Public Safety Act were deleted. As provided in sub section (4) of section 92 of the Constitution, this amendment is to remain in force until two years have elapsed from the date on which the proclamation ceases to have effect unless sooner repealed or re-enacted by an Act of the Legislature. It is by force of this amendment causing omission of the words in the State in section 10(b) of the Act, that the Government of Jammu and Kashmir has transferred the petitioner to this State.

(3.) In the case of Geetinder Kaur v. State of Punjab, where Geetinder Kaur's husband was detained by the State of Punjab under the National Security Act and was transferred to the State of Rajasthan, the Supreme Court has laid certain guidelines for a case where such transfer of a detenu in questions. What is said is this: While it is ordinarily desirable that a detenu should be detained in an environment natural to him in point of climate, language, food and other incidents of living, in the actual decision concerning the place of detention these considerations must yield to factors related to, and necessitated by, the need for placing him in preventive detention. While we maintain that the conditions imposed upon a detenu held in preventive detention must not be punitive, they must never the less be such as to secure the effectiveness of his incarceration. The place of detention is a matter for the administrative choice of the detaining authority, and a Court would be justified in interfering with that decision only if it was in violation of any specific provision of the law or was vitiated by arbitrary considerations and mala fides.