MOHD ZAMIR Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application submitted through the Superintendent of Central Jail, Jammu, by one Mohmad Zamir, challenging his detention under section 3 (2) read with section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, hereinafter referred to as the Act. It appears that the petitioner was arrested and detained pursuant to order No. 19/PDA/1971/1 -10 dated June 21, 1971, passed by Mr. Mahmood -ur -Rehman, I. A. S. styling himself as District Magistrate, Jammu.

(2.) ON the last date of hearing Mr. Salaria appearing on behalf of the petitioner wanted time to file an affidavit in rejoinder to the counter -affidavit filed in opposition to the application. He was accordingly given time to do so. At the hearing of the application today, he has stated before me that he could not contact the detenue as the necessary communication could not be addressed by the office to the Supdt. of the Central Jail, Jammu, where the petitioner is at present lodged. He has also submitted that he does not consider it necessary to ask for further time to file an affidavit in view of his contention regarding the incompetence of the detaining authority to pass the impugned order. He has urged that Mr. Mahmood -ur -Rehman, I. A. S. not being the District Magistrate could not pass the order directing the detention of the petitioner. He has in support of his submission relied upon two decisions of the Nagpur High Court in Prabhakar Kesheo Tare and others v. Emperor, A. I. R. 1943, Nagpur 26, and Prabhulal Ram Lal Kabra versus Emperor, A. I. R. 1944, Nagpur 84.

(3.) MR . Amar Chand appearing on behalf of the State has produced before me a copy of notification No. S. R. O. 206 dated May 2, 1970 and has contended that Mr. Mahmood -ur -Rehman, having been duly appointed an Additional District Magistrate, Jammu, could issue the impugned order of detention. I am afraid, I cannot accede to this contention. Notification No. 206 dated May 2, 1970, relied upon by Mr. Amar Chand, runs thus: "In exercise of the powers conferred by sub -section (1) of section 12 of the Code of Criminal Procedure, Samvat 1989, as amended by the Jammu and Kashmir, Separation of Judicial and Executive Functions Act, 1966, the Governor hereby appoint Shri Mahmood -ur -Rehman, I. A. S. Additional Deputy Commissioner Jammu as an Executive Magistrate of First Class within local limits of Jammu District. The Government further in exercise of the powers conferred by sub -section (2) of section 10 of the said Code hereby appoint the aforesaid Additional Deputy Commissioner, Jammu, as an Additional District Magistrate within his jurisdiction and also direct that he shall have all the powers of a District Magistrate under the said Code. Notification No. SRO -359 dated the 8th July, 1969, is hereby rescinded. By order of the Government of Jammu and Kashmir." A careful perusal of the above Notification would show that Mr. Mahmood -ur -Rehman was appointed as Additional District Magistrate and was invested with the powers of a District Magistrate under the Code of Criminal Procedure. He was not invested with the powers of a District Magistrate under the Act. Under section 10 (2) of the Code of Criminal Procedure an Additional District Magistrate has all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the Government may direct. If it had been the intention of the State Government to invest Mr. Mahmood -ur -Rehman with the power of directing detentions under sub -clauses (i) and (ii) of clause (a) of sub -section (i) of section 3 of the Act, it would have said so in clear terms as this power was exercisable by the District Magistrate not under the Code of Criminal Procedure but under the Act. Mr. Amar Chands contention that since Mr. Mahmood -ur -Rehman could exercise all the powers of a District Magistrate under the Code he could as well order detention under the Act is also devoid of substance for another reason. A perusal of subsection (2) of section 3 of the Jammu and Kashmir Preventive Detention Act, 2011 (Act IV of 2011) which was in force before 8th of May, 1964, and was repealed by the Jammu and Kashmir Preventive Detention Ordinance No. 1 of 1964, would show that the power of directing detentions under this Act was conferred not only on the District Magistrates but upon the Additional District Magistrates and Sub -Divisional Magistrates as well. If there were any force in the contention of Mr. Amar Chand, it would not at all have been necessary for the Legislature to authorise Additional District Magistrates specifically to make orders directing the detention of persons in certain cases by means of sub -section (2) of section 3 of the Act No. IV of 2011. The conferment of the power of ordering detention specifically on Additional District Magistrates shows that but for this authorisation they could not have exercised this power. If the intention of the Legislature had been that this power should be exercisable by Additional District Magistrates as well under the Act of 1964, a mention to that effect would have been made by it in section 3 of the Act. The omission on the part of the Legislature in this behalf and on the part of the Government to say in the aforesaid Notification that Mr. Mahmood -ur -Rehman, would have the power of a District Magistrate under the Act appears to be deliberate. It seems that neither the Legislature nor the Government thought it desirable that the drastic and wide power of detention should be exercised by any Magistrate other than a District Magistrate who is superior in rank to an Additional District Magistrate and who is a person with mature experience. I am fortified in this view by a catena of decisions. In Prabhakar Kesheo Tare and others v. Emperor A. I. R. 1943, Nagpur 26, (Supra) Vivian Bose J. while dealing with an order of detention passed by an Additional District Magistrate under rule 26 of the Defence of India Rules, which could have been issued by a District Magistrate, observed: "The mere fact that he (i.e. an Additional District Magistrate) can exercise the powers of a District Magistrate for a great many purposes does not necessarily invest him with authority to exercise all the District Magistrates powers." Again in Prabhulal Ram Lal Kabra v. Emperor, A. I. R. 1944 Nagpur, 84, a Division Bench of the Nagpur High Court, while dealing with the validity of an order of detention issued by an Additional District Magistrate under rule 26 of the Defence of India Rules, observed: "The object of section 10 (2), Criminal Procedure Code is only to relieve the pressure of work falling on the shoulders of the District Magistrate in the course of the performance of his normal duties under the Criminal Procedure Code or any other ordinary law. The Additional District Magistrate who is invested with powers of a District Magistrate, does not thereby attain the status of the District Magistrate as sub -section (3) of section 10, Criminal Procedure Code itself makes clear see also 54 Mad. 943. The fact that the Additional District Magistrate may have all the powers of the District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the District who can be a District Magistrate. The Provincial Government, when it conferred the power on the District Magistrate under section 2 (5), Defence of India Act, conferred the power on the officer actually holding the office of the District Magistrate and on no one else." In Ajaib Singh v. State of Punjab (1965) 2 SCR 845 = (A. I. R, 1965 S. C. 1619), where the Additional District Magistrate of Amritsar who had been invested with the powers of a District Magistrate under section 10 (2) of the Code was in charge of the office of the District Magistrate when the latter was transferred, and passed an order detaining a person under rule 30 (1) (b) of the Defence of India Rules, 1962, it was held that the Act and the Rules showed unmistakably that the powers of detention could be exercised only by the State Government or by an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. The Additional District Magistrate was below the rank of a District Magistrate and even though he had been invested with all the powers under the Code and also under any other law for the time being in force he was still not the District Magistrate unless the Government appointed him as such under section 10 (1), In Hari Chand Aggarwal v. The Batala Engineering Co. Ltd., and others, A. I. R. 1969, Supreme Court 483, where the power of requisitioning property under section 29 of the Defence of India Act, which was delegated by the Central Government to District Magistrates under section 40 of the said Act was exercised by an Additional District Magistrate, the Supreme Court held that it could not be exercised by the Additional District Magistrate simply because he had been invested with all the powers of a District Magistrate under section 10 (2) of the Code of Criminal Procedure. It would be advantageous to refer to the following observations made therein by Grover J. who spoke for the Bench: "The scheme of section 10 of the Code leaves no room for doubt that the District Magistrate and the Additional District Magistrate are two different and distinct authorities and even though the latter may be empowered under subsection (2) to exercise all or any of the powers of a District Magistrate but by no stretch of reasoning can an Additional District Magistrate be called the District Magistrate which are the words employed in sub -section (1) of section 10." Respectfully following the ratio decidendi of the above noted cases, I hold that Mr. Mahmood -ur -Rehman was not competent to pass the impugned order of detention under section 3 (2) of the Act on the strength of the aforesaid Notification i.e. SRO -206 dated May 2. 1970. The said order being clearly not in accordance with law, I have no option but to hold the detention of the petitioner as illegal.