Judgement

DAS, CJI.: These two petitions raise a common question of interpretation of S. 8 of the Jammu and Kashmir Preventive Detention Act, 2011, being Act IV of (Samvat) 2011 (hereinafter referred to as the Act). Both the petitions have been filed under Art. 32 of the Constitution of India, complaining that the petitioners have been and are being wrongfully detained under the Act and praying for their immediate release.

2. By two separate orders made by the Jammu and Kashmir Government on April 26, 1956 in exercise of the powers conferred on it by sub-s. (1) of S. 3 of the Act the Government ordered that the petitioners be detained. Each of the orders recited that the Government had been satisfied with respect to each of the petitioners that with a view to preventing him from acting in a manner prejudicial to the security of the State, it was necessary to make an order that he be detained. No grounds having been supplied to either of the petitioners nor any declaration having been made under the proviso to S. 8 (1) of the Act for a considerable time, each of the petitioners applied to the High Court of Jammu and Kashmir under S. 491 of the Code of Criminal Procedure for an order in the nature of a writ of habeas corpus. During the pendency of those applications, on June 30, 1956, that is to say, more than two months after the date of the original order of detention, a declaration war, made by the Government under the proviso to S. 8 (1) to the effect that it would be against the public interest to communicate to the detenus the grounds on which the detention orders had been made. On July 28, 1956 both the petitions were dismissed by the High Court. It appears that the case of each of the detenus had been reviewed by the Government under sub- s. (2) of S. 14 of the Act in consultation with a person nominated by the Government for that purpose on June 4,1956 and the Government was satisfied that the detenu should continue to be detained. Accordingly on September 26, 1956 in exercise of the powers conferred by S. 14 of the Act the Government issued two separate orders directing that the said two detenus do continue to be detained. In the meantime on September 19, 1956 the two present applications were filed before this Court. The question is whether the declaration under the proviso to S. 8 (1) of the Act was made within the time fixed by S. 8 (1) of the Act for the communication to the detenus of the grounds on which the orders of detention had been made, and if not whether their detention became illegal.

3. These two petitions came up for hearing before a Division. Bench of this Court on October 20, 1956, when the attention of the Court was drawn to a Full Bench decision of the Jammu and Kashmir High Court in Hissam-Ud-Din Bandy v. The State, AIR 1955 J and K 7 (A), where it was held that though it was highly undesirable that a detenu should remain in suspense, there was no time limit fixed by the proviso for making a declaration and that, therefore, where the detention was for reasons of security of State, the mere fact that the declaration had been delayed beyond a reasonable time after the date of detention did not vitiate the detention. As the decision of a Full Bench consisting of three Judges required consideration, the Division Bench took the view that the petitions should be placed before a larger Bench. Hence the petitions have come up before us for final disposal.

4. Some of the provisions of the Constitution of India, subject to some exceptions and modifications, were extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954 made by the President in exercise of the powers conferred on him by cl. (1) of Art. 370 of the Constitution. Amongst other things in Art. 35 as extended to Jammu and Kashmir a new clause was added, namely:

"(c) no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the comm