Mohammad Afzal Khan vs State of Jammu and Kashmir

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 181 of 1956

Decision Date: 13 November 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Sudhi Ranjan Das

Mohammad Afzal Khan filed a petition against the State of Jammu and Kashmir that was decided on 13 November 1956 by the Supreme Court of India. The judgment was reported as 1957 AIR 173. The bench that heard the matter comprised Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S.K. Das, with Justice S. Sudhi Ranjan acting as Chief Justice. The case involved the Jammu and Kashmir Preventive Detention Act, specifically Section 14 of the Act, which was enacted as the fourth law of the year 2011 of the local calendar (Sambat). The headnote of the judgment explained that Section 14 does not require the making of a formal order, and therefore the provision does not create a right for the detained person to receive a communication of the government’s decision to continue detention within three months of the original detention. The Court applied the earlier decision in Ackhar Singh v. State of Punjab (Petition No. 359 of 1951, decided on 22 October 1951) to reach the conclusion that, where the government was satisfied that the detainee’s conduct was prejudicial to public order and that detention should be continued under Section 14, the detainee could not successfully challenge the detention on the ground that a formal order or communication had not been issued within the three‑month period. This interpretation meant that the statutory requirement of a three‑month notice could not be invoked to invalidate the continued detention in the present case.

The petition originated in the original jurisdiction of the Supreme Court as Petition No. 181 of 1956, filed under Article 32 of the Constitution seeking a writ of habeas corpus to declare the petitioner’s detention illegal and to secure his release. Counsel appeared on behalf of the petitioner, including an amicus curiae, while the Attorney‑General for India and two other advocates represented the respondent State. The judgment was delivered by Chief Justice S. Sudhi Ranjan Das. The factual background disclosed that the petitioner was arrested on 30 June 1954 pursuant to a detention order made on the same day under the Jammu and Kashmir Preventive Detention Act No. 4 of 2011 (Sambat). The grounds for the order were communicated to the petitioner on 1 July 1954, and he submitted a representation to the government on 12 July 1954. After receiving no further response, the petitioner applied to the High Court of Jammu and Kashmir under Section 491 of the Code of Criminal Procedure. The records indicated that the government reviewed the petitioner’s case on 23 August 1954 under sub‑section (2) of Section 14, in consultation with a person nominated for that purpose, and concluded that the petitioner should remain detained. Consequently, while the habeas‑corpus petition was pending, the government continued the detention in accordance with its assessment.

During the pendency of the earlier petition before the High Court, the Government on 23 December 1954 issued an order under section 14 of the Jammu and Kashmir Preventive Detention Act that continued the petitioner’s detention. Afterwards the petitioner approached the Vacation Judge of this Court invoking article 32 of the Constitution. The Vacation Judge expressed that he was not persuaded that any preliminary ground existed for interference, because he presumed the Jammu and Kashmir Preventive Detention Act to be constitutionally valid. Nonetheless, since the validity of that Act was being contested, the Judge directed that a rule be issued to address the constitutional question. On 9 September 1955 the petitioner, claiming that a decision of the Jammu and Kashmir High Court covered his case, sought permission to withdraw his petition; the Court granted the request and dismissed the petition as withdrawn. In the meantime the Government continued to review the petitioner’s case and periodically issued further orders extending his detention, the last such order being dated 8 June 1956. On 25 May 1956 the petitioner filed a second petition before the Jammu and Kashmir High Court, which the High Court dismissed on 21 June 1956. Subsequent to that dismissal, the present petition under article 32 was filed before this Court on 26 September 1956. The learned Attorney‑General raised a preliminary objection, contending that, in view of the Vacation Judge’s observations on the merits of the earlier case, the present petition could not be maintained on any issue other than the constitutional point. Shri T. R. Bhasin, assisting as amicus curiae, drew the Court’s attention to a fresh petition filed by the petitioner and assured that he would not raise any factual questions that had been presented in the withdrawn petition, but would limit his submissions to the new points of law raised in the supplementary petition. Because the petition concerned the liberty of a subject, the Court considered it appropriate to hear Shri Bhasin on the newly raised legal issues. Shri Bhasin identified two points for consideration: first, that the detention had become wrongful and illegal because the order under section 14 was not made before the expiry of the three‑month period following the original detention order; and second, that the second ground of detention was infirm because the Chief Secretary had admitted that no hotel named “Guest House Hotel” existed at Amira Kadal, the venue where the detainee was alleged to have attended a meeting. The second point arose from a typographical error in the copy of the Chief Secretary’s affidavit that had been available to counsel. In fact, the Chief Secretary maintained that a Guest House Hotel did exist at Amira Kadal; after the original affidavit was shown to counsel, he abandoned the second point, although he, however,

The petitioner again pressed the first ground of relief. Counsel drew the Court’s attention to article 22 clause 4 of the Constitution, which provides that no law permitting preventive detention may authorize the detention of any person for a period longer than three months except in the circumstances expressly mentioned in that clause. Sub‑clause (b) of the same article makes it clear that the provision of clause 4 does not apply to a person who is detained under any law made pursuant to sub‑clauses (a) and (b) of clause 7 by Parliament. In the case of Jammu and Kashmir, the reference to “Parliament” has been replaced by the words “legislature of the State” by the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the President. The operative question therefore was whether the petitioner’s detention had been lawfully continued beyond the three‑month period by relying on section 14 of the Jammu and Kashmir Preventive Detention Act.

Counsel for the petitioner, Shri T. R. Bhasin, maintained that an order under section 14 must be issued before the expiry of the three‑month period that follows the original detention order. On examination of section 14, the Court observed that the section does not, in its terms, require the making of any formal order. The provision merely states that, notwithstanding anything contained in the Act, any person detained under a detention order made in either of the two classes of cases “may” be detained or have the detention continued without obtaining the opinion of an Advisory Board for a period exceeding three months. The section contains no specific requirement for the issuance of an order or for any declaration similar to that contemplated by the proviso to section 8(1).

Counsel further argued that the use of the word “may” implied that the Government must reach a decision and that, once such a decision was taken to deal with the petitioner’s case under section 14, the Government was obliged to communicate that decision to the detainee. The Court examined the material before it and found that the Government had appointed Shri A. H. Durani for the purpose of consultation under section 14(2) on 23 August 1954, which fell within two months of the date of the original detention order. Consequently, the record clearly showed that the Government had decided that the petitioner, whose detention was based on alleged activities prejudicial to public order, should be dealt with under section 14 and that his case would not be referred to the Advisory Board.

The Court saw no justification for the contention that the Government’s decision had to be communicated to the detainee. It was not demonstrated how such communication would have benefited the petitioner. Moreover, the Court noted that, as expressed in the decision of Achhar Singh v. State of Punjab, the failure to convey an order made under section 1 of the Indian Preventive Detention Act does not render the detention illegal or constitute a violation of the petitioner’s fundamental rights. Accordingly, the petitioner's first ground was dismissed.

The Court observed that the provision identified as section 1 of the Indian Preventive Detention Act does not, by its terms, render a detention illegal nor does it constitute a violation of the petitioner’s fundamental rights. In other words, the existence of a formal order under that section does not create any illegality. The Court then reasoned that, if that conclusion follows for section 1 of the Indian Act, the same logical result must follow for section 14 of the Jammu and Kashmir Preventive Detention Act, even though that latter provision does not expressly require the creation of a formal order. Accordingly, the Court found that the application presented no substantive ground that could sustain relief. On that basis, the Court concluded that the application was devoid of merit and ordered its dismissal. The dismissal was entered as an Application dismissed. This conclusion was recorded in the earlier decision cited as Petition No‑359 of 1951, which was decided on 22 October 1951.