1983 P Cr (PLP)

Briefly stated, the facts leading to the presentation of this petition before this Court are that the petitioner who is an Advocate and Ex‑Minister of Azad Kashmir Government, was arrested on 13th September, 1982 and detained in Central Jail, Muzaffarabad, for a period of one month, on the basis of an order made by the District Magistrate, Poonch in exercise of the powers vested in him under section 3 (2) read with section 27 of the Ordinance and Government Notification No. H & P/1416/79 dated 25th March, 1979. The grounds on which the order of his detention was made. were communicated to him through the Superintendent Jail, Muzaffarabad vide District Magistrate Poonch No. 582 dated 15th September, 1982 and which are to the following effect :‑ "That your activities in the recent past in Azad Jammu and Kashmir territory ‑ (1) were calculated to inviting the public to voilence against the present Government of Azad Jammu & Kashmir. (2) were aimed at creating hatred contempt and alarm. (3) Have been in a manner prejudicial to public safety and Maintenance of Public Order." Later on, the above period of detention of the petitioner was extended for a further period of one month w. e. f. 12th October, 1982 by the Government vide its Order dated 5th October, 1982. The learned Counsel for the petitioner has assailed the validity of detention of the petitioner on the following grounds :‑ (1) That the order of detention of the petitioner was made by the District Magistrate, Poonch in purported exercise of his powers under Ordinance of 1979 which had already expired since long at the time of making the order. (2) That the grounds on which the detention of the petitioner has been based and furnished to the petitioner are vague and ambiguous and cannot be treated as grounds which the detaining authority is, under legal obligation, to furnish to the detenu in terms of Section 3 (6) of the Ordinance. (3) That the District Magistrate, Poonch had no authority under the Ordinance to detain the petitioner in Muzaffarabad Jail. (4) That the Government Order extending the original period of detention of the petitioner has been issued without its satisfaction as is envisaged by section 3 of the Ordinance and rather the Government has been pleased to issue the said order as is apparent on the face of it. (5) That the petitioner has not indulged in any activity which may be said to .be prejudicial to the public safety or Maintenance of Public Order. Now, I would proceed to take up the above grounds of attack on the legality of detention of the petitioner seriatim :‑ As regards the first contention of the learned counsel for the petitioner that the order of the District Magistrate Poonch for the arrest and detention of the petitioner is illegal on account of its having been made under the law which had ceased to exist in the eyes of law, it has much substance in it. The order of the District Magistrate, Poonch regarding the arrest and detention of the petitioner would show that it has been issued by him in exercise of powers vested in him under section 3 (2) read with section 27 of the Ordinance which means that the authority of the order in question his been derived from a law which was dead and had ceased to exist. It needs hardly any mention that the life of an Ordinance is only four months after which it dies its natural death and any action taken on the basis of such an expired Ordinance is a nullity in the eyes of law and no amount of argument can defend an action taken on the strength of the same. In this view of the matter, the order made by the District Magistrate, Poonch for the arrest and detention of the petitioner on 13th August, 1982 under the Ordinance was unlawful and without authority. Since the initial order of detention of the petitioner having been found to be without legal justification, the subsequent order of the Government extending the period of detention of the petitioner for a further period of one month automatically falls to the ground and is unlawful which does not provide legal basis for the detention of the petitioner. The next ground urged by the learned counsel for the petitioner that the detention of the petitioner is invalid for the reason that the grounds of detention of the petitioner were not communicated to the petitioner as required under the relevant law, is also not without any force. Sub section (6) of section 3 of the Ordinance makes it incumbent upon the detaining authority to convey to the detenu the grounds on which it has based the order of his arrest and detention and to inform him that he is at liberty to make representation to the Government against the order of his detention. In the instant case, the grounds communicated to the petitioner and reproduced somewhere earlier in this order, would show that those cannot, by any stretch of imagination, be considered and treated as the grounds which the Azad Jammu and Kashmir Interim Constitution Act. 1974 and section 3 (6) of the Ordinance envisage to be communicated to the detenu by the detaining authority. Here, the petitioner has only be informed that his activities in the recent past were calculated to invitin B the public to violence against the present Government ; were aimed at creating hatred, contempt and alarm and have been in a manner prejudicial to public safety and maintenance of public order ; such grounds can hardly be described as. the grounds of detention of the detenu the conveyance of which to him has been made mandatory under the Constitution and Ordinance itself. The grounds required to be furnished to detenu should consist of facts and other details of activities of the detenu on the basis of which the detaining authority has formed its opinion that his activities are prejudicial to public safety and Maintenance of Public Order and it is necessary to keep him in custody so as to prevent him from acting in a manner prejudicial to public safety and Maintenance of Public Order. The object of furnishing the grounds of detention to the detenu is to make him aware of the facts which the detaining authority considers to be such as calling for an action under the Ordinance in the interest of Maintenance of Public Order so that he may be able to refute the attributions or given other reasonable explanation to the detaining authority for its consideration so that it may release him from the custody if satisfied by his representation. But as stated earlier, the grounds of detention conveyed to the petitioner do not disclose any facts or his illegal activities which, in the opinion of the detaining authority, were prejudicial to public safety and Maintenance of Public Order. Thus, in the absence of such grounds, he cannot make any effective representation to the concerned authority regarding his detention. This Court in a case reported as 1981 P. Cr. L. J. 856, has already held that non‑supply of grounds of detention to the detenu renders his detention invalid and without lawful authority. Thus, the detention of the petitioners is also not warranted by law by reason of grounds of detention having not been furnished to the petitioner in terms of requirements of the Constitution and Ordinance. The next argument advanced by the learned Counsel for the petitioner that the detention of the petitioner is without jurisdiction on the ground that the District Magistrate had no authority under law to order the detention of the petitioner outside his territorial jurisdiction, is also quite forceful. There is no dispute about the fact that the petitioner was originally detained in Central Jail Muzaffarabad by the order of the District, Magistrate, Poonch, purported to have been issued in exercise of powers delegated to him by the Government under section 27 of the Ordinance. The above section empowers the Government to delegate its powers under Section 3 (2) of the Ordinance to the District Magistrate to be exercised by him within his jurisdiction only. Thus, a District Magistrate can only arrest and detain a person within the territorial limits of his jurisdiction over which his executive authority prevails under the powers delegated to him by the Government under section 27 of the Ordinance and has no authority to order the detention of a person outside his District as has been done in the instant case. The similar view has already been taken by this Court in, a case entitled "Sardar Sawar Khan v. Azad Government", decided on 8th August, 1982. In this view of the matter, the detention of the petitioner cannot be saved as valid. The last legal ground urged by the learned counsel for the petitioner is that the order of the Government extending the period of detention of the petitioner is bad in law on the ground that the same has been made without applying its mind and satisfying itself that such an order was necessary in the circumstances of the case. This objection has also much weight. As is evident from the aforesaid order, the Government has not mentioned in it that it is being issued after its being satisfied that it is necessary to detain the petitioner for a further period of one month with a view to preventing him from acting in a manner prejudicial to public safety and Maintenance of Public Order; rather, on the contrary, the Government has been pleased to extend the period of detention of the petitioner. There is no gain saying the fact that the pleasure and satisfaction are not one and same thing and these two expressions carry quite different and distinct meanings and connotations. When the Government is pleased to make an order, it does not mean that it has made that order after satisfying itself that the legal necessity existed for its making such an order. The order of the Government under consideration appears to have been made at the pleasure of the Government and not after its satisfaction as contemplated by section 3 (2) of the Ordinance and for this reason also its validity is questionable. When the learned Additional Advocate‑General Was confronted with the above legal flaws found in the detention of the petitioner, he has not been able to give any effective explanation. For the foregoing reasons, the detention of the petitioner is held to be illegal and without lawful authority on account of which the Superintendent Jail, Muzaffarabad is ordered to release the petitioner forthwith if he is not wanted in connection with any other case. Detenu released