Judgement

SHAH, J.: On March 16, 1968 the petitioner was arrested and ordered to be detained under S. 3 (1) (a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964. On March 26, 1968, he was served with the grounds of detention. On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court. The petition was rejected by this Court on October 10, 1968. In the meanwhile the order dated March 16, 1968, was revoked on September 16, 1968, and another order was served upon the petitioner on the same day. On September 24, 1968, he was served with the grounds of detention for the fresh order, and his case was referred to the Advisory Board on October 26, 1968. On October 30, 1968, the Advisory Board recommended that the petitioner be detained. The petitioner then moved this petition on November 11, 1968 for a writ of habeas corpus.

2. Two contentions in the nature of preliminary objections were raised in support of the petition. It was urged that (1) the petitioner was, in spite of a specific request, denied a personal hearing before the Advisory Board, and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention. (An affidavit is filed by the Secretary to the Government of Jammu and Kashmir affirming that the petitioner made no request for production before the Board for a personal hearing. He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act.) In view of this affidavit, Counsel for the petitioner did not press the two preliminary contentions.

3. Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory Board till September 24, 1968 and on that account his detention was invalid, and he could not be continued in detention thereafter; (2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite.

4. By Article 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention. But Article 35 (c) in its application to the State of Jammu & Kashmir provides :

"no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof."

The protection of clauses (5), (6) and (7) of Article 22 insofar the provisions of the Act encted by the Jammu and Kashmir Legislature are inconsistent therewith does not avail the petitioner. By Section 3 the Government of Jammu and Kashmir is entitled, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order directing that such person be detained. By Section 8 it is provided :

"(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order of the Government.

(2) Nothing in sub-section (1) shall require the authority to (disclose facts which it considers to be against the public interest to disclose."

Section 9 provides for the constitution of Adv