Judgment

BHARGAVA, J.:- In this petition under Article 32 of the Constitution, there are now two petitioners before us Mohd. Shafi and Modh. Yaqub. Both these petitioners were originally detained under the Defence of India Rules. In January, 1968, when the President issued the notification terminating the Emergency so that the Defence of India Rules became ineffective, steps were taken to detain both these petitioners under the Jammu and Kashmir Preventive Detention Act No. 13 of 1964 as amended by the Jammu and Kashmir preventive Detention (Amendment) Act No. 8 of 1967 (hereinafter referred to as " the Act"). In both cases, the orders of detention were passed on the 3rd January, 1968 and these were served on the detenus. Mohd. Shafi is continuing under Detention even now under that order of 3rd January, 1968, while, in the case of Mohd. Yaqub, that order was revoked and a fresh order of detention was served on him on the 25th August, 1969. Both the petitioner challenged their detention in this writ petition on the ground that their detention under the orders dated 3rd January, 1968 had become illegal. During the pendency of this petition, the order of 3rd January, 1968 in respect of Mohd. Yaqub having been revoked and a fresh order having been served on him on the 25th August, 1969, Mohd. Yaqub filed a supplementary affidavit to challenge his detention under this later order.

2. Mohd. Shafi challenged the validity of his detention order primarily on the ground that the grounds of detention were not served on him within the period of 10 days laid down by Section 8 (1) of the Act. According to the affidavit filed on behalf of the Government, the detention order dated 3rd January, 1968 became effective on 10th January, 1968 became effective on 10th January, 1968, and the grounds of detention were served on 12th January, 1968, so that, even if the period of 10 days is counted from the date of the order, viz., 3rd January, 1968, the service of the grounds was within the period laid down in Section 8 (1). Mohd,. Shafi, on the other hand, filed a counter affidavit alleging that the grounds of detention were not served on him on 12th January, 1968 but were served much later. In view of this new affidavit filed by Mohd. Shafi an opportunity was given to the State Government to file rejoinder affidavits bringing to the notice of the Court the correct facts about service of the grounds of detention on him. The Government was also directed to produce the relevant records of the Secretariat and the Jail for perusal of the Court. Two rejoinder affidavits have been filed. These affidavits are by Dina Nath, retired Deputy Superintendent, Central jail, Jammu, who was occupying that post at the relevant time, and by Girdhari Lal Aima, Head-Assistant, Home Department (Internal Security Section), Jammu and Kashmir Government, Srinagar. Their affidavits disclose that information was sent from the Jammu Jail to the Secretariat on the 2nd April, 1963, giving intimation that the grounds of detention had been served on Mohd. Shafi on 12th January, 1968. Dina Nath, the retired Deputy Superintendent of the Jail has not stated on oath that he himself served the grounds on Mohd. Shafi on 12th January, 1968. All he says is that on 12th January, 1968 when the copies of grounds of detention were served upon various detenus, the duplicates in respect of them were with the jail authorities and on the basis of the said duplicates, he prepared the letter dated the 2nd April, 1968, addressing it to the Secretary to Government. In this letter, according to him, it was stated that the ground of detention were delivered to the detenus concerned on the 12th January, 1968. Thus, no one on behalf of the State Government has come forward to swear in an affidavit that the grounds of detention were actually served in his presence or by himself on Mohd. Shafi on 12th January, 1968. As against this, there is the definite statement in the affidavit of Mohd. Shafi that the gro