GHULAM NABI JAN Vs. STATE

JUDGEMENT

(1.) THIS is an application submitted by Ghulam Nabi Jan detenu under Section 491, Criminal P. C. Ghulam Nabi Jan who has been ordered to be detained under Section 3 of the Public Security Act, is this time under detention in the Sub Jail, Udhampur. His contention as raised by his Learned counsel in brief is that his detention at Udhampur is both illegal and improper, that he had gone to the place wherefrom he was arrested (office of Kh. Ghulam Mohi-ud-Din Advocate) simply to get his papers back from Mr. Latif Advocate who had turned a politician and was not likely to devote much time to his profession and to the cases which the applicant says he had entrusted to him. Before us the detenu is represented by an Advocate of this Court, Pt. Lok Nath Sharma. Pandit Sharma has made a two pronged attack upon the validity of the order of detention on two grounds: firstly that the arrest of, the detenu by S. Ghulam Qudir, Inspector of Police, was not effected strictly according to law, and secondly that his transfer from Kothibagh sub-jail Srinagar to Udhampur sub-jail is illegal and that his detention at Udhampur is equally against the provisions of law. As regards the illegality of the arrest, the Learned counsel has raised a number of pleas, chief amongst them being that the order of arrest was in fact not existing at the time when the arrest of the detenu was effected, the suggestion being that it has been prepared afterwards to tide over a difficult legal position. But in view of the order that we propose to pass in the case on other grounds we need not go into this and other allied questions raised with regard to the legality or otherwise of the arrest. We might, therefore, straightway go to the second point which in our opinion is sufficient to dispose of this application.

(2.) AS already stated, the detenu is this time under detention in the Udhampur sub-jail. The order of detention has been passed by the Superintendent of police Srinagar. Two questions crop up in this case:

(3.) THERE can be no denial to the fact that the Superintendent of Police who has made the detention order in the present case could make such an order. Sub-sections (1) and (2) of Section 3 of the Public Security Act lay down that an officer authorized by the Government under this section can effect the arrest and detention of a detenu under certain circumstances. Reference may in this connection be made to Annexure to Council Order No. 356-C of 1947 which empowers all Police officers of and above the rank of Sub-inspector of Police to exercise powers of arrest and detention under this section. But then there is another condition laid down in the above referred to Annexure to Council Order that the power of arrest and detention has to be exercised by a police officer within his own jurisdiction. From this it would follow that as long as Ghulam Nabi Jan continued to be in detention in the Sub-jail Kothibagh which is within the jurisdiction of the Superintendent of Police Srinagar, his detention was perfectly legal. But then the jurisdiction of the Superintendent of Police Srinagar does not extend to Udhampur Sub-jail. Therefore obviously the detention of the detenu at a place beyond the jurisdiction of the Superintendent of Police Srinagar in pursuance of a detention order of the same Superintendent of Police would not be legal. Reference may in this connection be made to a Division Bench judgment of this Court -Shambu Dutt v. State (J. and K.) (A)', in which it has been held that If a S. R. O. orders that a detenu be kept at a place beyond his jurisdiction, such an order of detention is clearly bad in law. A similar view has been taken in a Bombay casa reported as - Bashan Madar v. Emperor AIR 1949 Bom 37 (B), in which it has been held that Thus where the District Magistrate of Sholapur passes an order under Section 2 (4) detaining a person in the Yeravada Jail in the poona District, the order is without jurisdiction. In view of the Notification No. 671, dated 26th April 1947, under which the powers have to be exercised by the District Magistrate within the jurisdiction. Such an order cannot be separated from the one passed under Section 2 (1) (a ). Such an illegal order cannot be revalidated under Section 2 (4) by the Government.