GHULAM AHMAD ASHAI Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 491, Criminal P, C. , submitted by Mr. Ghulam Ahmad Ashai, a detenu, through the Superintendent of Sub-jail, Kud, praying for being released from detention on the ground that his detention was illegal. The application came up for hearing before a Single Bench of this Court and by order dated 5th of Har 2011, it was referred to the Pull Bench for decision. In view of the fact that the case was perhaps the first of its kind which came up for hearing after the promulgation of the presidential Order of 14-5-1954, we gave the parties ample opportunity to present their case in all its aspects and in fact we heard the counsel for a number of days.

(2.) ON 9-8-1953 the petitioner was arrested and detained under an order of Mr. G. R. Thapa, Deputy Inspector General of Police, Kashmir, issued in exercise of powers conferred on him under Section 3, Jammu and Kashmir Public Security Act, 2003, as amended by Ordinance No. 1 of 2010. Mr. Thapa's order reads as under : Whereas I, G. R. Thapa, Deputy Inspector General of Police, Kashmir, am satisfied with respect to Mr. G. A. Ashai son of Mr. Qadir Shah Ashai resident of Raj Bagh, that it is necessary to detain the said Mr. G. A. Ashai with a view to prevent him from acting in any manner prejudicial to the maintenance of public safety and peace; Now, therefore, I, the said Deputy Inspector General of Police, Kashmir, in exercise of the powers vesting in me under Section 3, Jammu and Kashmir Public Security Act, 2003, read with the orders issued by the Government thereunder from time to time, order that the said Mr. G. A. Ashai be detained. I further order that the said Mr. G. A, Ashai be arrested for the purpose of detaining him and committed to custody in Central Jail, Srinagar. Given under my hand this ninth day of August 1953.

(3.) THE contention of the counsel for the petitioner is that the order is vague and not strictly in conformity with the law and, therefore, invalid. Our attention has been drawn by him to the following words used in the order : read with the orders issued by the Government from time to time. The learned Counsel for the petitioner contends that Mr. Thapa should have specifically mentioned the orders issued by the Government under which he purported to exercise his power of arrest and detention. According to the learned Counsel the absence of the mention of the specific orders of the Government has made the whole order vague and therefore invalid. As against this, it is argued by the Asstt. Advocate General that no particular form is prescribed in Section 3 of the Public Security Act in which an order of detention is to be drawn and as such the mere fact that the detaining authority has not set out in detail in the detention order the orders of the Government by which he is authorized to act under Section 3 would not invalidate the detention order. It is true that no form, as argued by the Asst. Advocate-General, has been prescribed in Section 3 of the Public Security Act, but that does not mean that a free licence has been given to detaining authorities to draw their orders in a haphazard manner, without regard for the fact that these orders must not only show that the detaining authority was satisfied about the necessity of making a detention order, taut it must also show - and the detenu has a right to know-that the detaining authority was in fact authorized by the Government to take action under the relevant section. It is not a fact, as given by Mr. Thapa in his order of detention, that the said order was passed by him under powers vested in him by Section 3 of the Public Security Act. As a matter of fact it is the Government in whom the power to act under the said Act is vested and Mr. Thapa could act under this section only if he was authorized by the Government to do so. It is not denied that Mr. Thapa was authorized by the Government to act under this section, but we are of the opinion that it would have been quite in the fitness of things if Mr. Thapa had mentioned clearly the particulars of the Government orders authorizing him to act under S. 3, But we need not pursue this matter any further. The applicant is detained at the present moment not under the order made by Mr. Thapa but by an order of the Government dated 4-4-1954. And it would be on the basis of this order that the validity or otherwise of the detention of the applicant has to be adjudicated upon. 3a. The Deputy Inspector-General of Police could order detention of the detenu for a limited period of two months. During these two months the detenu was transferred from Central Jail Srinagar, to the Central Jail, Jammu, by an order of the competent authority. His period of detention was extended by further two months by order of Mr. D. P. Dhar Dy. Minister in charge Law and Order who was competent to do so. On 18th October the petitioner was transferred from the Central Jail Jammu, to sub-jail, Kud, under the telephonic orders of the Health Minister as is evident from the letter of the Superintendent Central Jail, Jammu, to that effect. The counsel for the petitioner has argued that under the Public Security Act the power to order transfer of a detenu from one jail to another had been given to the Chief Secretary under Notification forming an annexure to C. O. No. 1050-C of 1953 and no to the Health Minister, and that therefore the detention of the petitioner onwards from 18-10-1953 -the date on which he was transferred to sub-jail, Kud - was illegal.