1982 P Cr (PLP)

‑‑ R. 23‑Preventive detention --‑ Government wrongly exercising its powers in making extension in detention of detenu at a stage to be covered by Home Secretary ‑-- Detention, held, against law and being without jurisdiction, amounted to illegal confinement of detenu, in circumstances.--‑[Preventive detention]. Mr. Rathore for Petitioner. Rafique Mahmood Khan, A. A.‑G. for the State. Date of hearing : 11th March, 198 . By this application dated 15th February, 1982 the order of detention of Abdul Majid Chaudhary has become a subject of challenge herein for being illegal according to the petitioner which could not have been brought within the mischief of rule 23 of the Civil Defence Rules, 1962. The grounds on which the detention was initially ordered by the District Magistrate, were also furnished to the detenu who has filed his written affidavit in order to belie them (grounds). No counter‑affidavit was filed by the respondents, nor it was felt by them so as to establish the truthfulness of the grounds constituting the subversive activities of the detenu by production of any evidence. Therefore, I am constrained to hold that the detenu is not wrong while submitting his written affidavit stating therein that whatever allegations were made against him, they were absolutely wrong and that he had not acted in a manner prejudicial to the security and defence of the State. It may be noted here that the detenu could only be taken to task under the provision of rule 23, if the security and the defence of the State were involved. The criticism on the Government in any manner involving politics short of damaging security and defence of the State does not mean that the person detained was involved in anti‑State activities so as to attract his detention under rule

23. Moreover, after the lapse of a period of three months no extension in detention of the said detenu could be made by the authority concerned unless before the expiration of a period of three months, the case of detention of the above‑noted person was referred to a Review Board set‑up by the Government as required by sub section 4(5) of section 4 of the Interim Constitution Act, 1974 in order to obtain its opinion for authorisation of further detention. But no such Review Board, if any, was approached by the authorities detaining the said person to have a report from it to the effect that in its opinion there was Sufficient ground for such detention which could be ordered to take effect after the expiration of three months of detention. This was not done by the respondents in the instant case and without doing so further detention of one month after the expiration of a period of three months becomes illegal. The District Magistrate‑respondent could have ordered the detention for a period of two months including the extension if the security or the defence of Azad Kashmir was involved and further extension in the detention thereof could have only been made by the Home Secretary by a special order which could have been extended further to a period of one year and beyond that the Government may extend the same from time to time. But in the instant case the Government instead of Home Secretary, was pleased to make extension beyond a period of two months and as such the Government was not competent to make the impugned detention of the said person: It is not within the pleasure of the Government to detain a person under a preventive law but it is a matter of the satisfaction of the Government while ordering detention of a person at the appro priate stage. The stage for the Government was not reached yet in this case so as to make any order in respect of the detention of the said person in form of extension. Thus it was wrongly asserted by the Government at this stage in question that the Government was empowered to make extension in detention under rule 23 at a stage which was to be covered by the Home Secretary. The Government as an authority making or directing the arrest of a person could have, of course, initially made an order for detention for a period of one month and thereafter at the last stage after the expiration of a period of one year inclusive of the extension made by the Home Secretary in order to extend period of detention beyond one year from time to time. The instant case has not yet reached the final stage. It was yet at the middle stage to be acted upon by the Home Secretary and not by the Government if rule 23 could be invoked for the sub versive activities involving defence and security of the State i.e. Azad Jammu and Kashmir. The first stage for extension falls to the lot of the District Magistrate ; second one goes to the Home Secretary and thirdly, the Government comes in to make extension beyond a period of one year from time to time. Thus the impugned extension in detention which was to be made by the Home Secretary was wrongly made by the Government as being without jurisdiction. In the above circumstances, the detention of the said person is declared against law which obviously amounts to illegal confinement. That being so, this application is accepted and the ‑ immediate release of the said person is hereby ordered. The orders for his release forthwith shall issue to the Superintendent Jail Pallandri. Petition allowed.