Holding

Further detention is invalid because the Advisory Board did not submit its report within the period prescribed by Section 16(1) of the Jammu & Kashmir Public Safety Act, breaching constitutional safeguards.

Summary

Ashok Kumar Binny and Hans Raj were detained under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. Their detentions were referred to an Advisory Board, which is statutorily required to submit its report to the Government within eight weeks of the date of detention under Section 16(1). The Board failed to do so, and the petitioners filed writ petitions under Article 32 seeking habeas corpus relief. The Court held that the failure to submit the report within the prescribed period violated the procedural safeguards of Article 21 and the preventive detention provisions of Article 22, rendering any further detention illegal. Consequently, the Court ordered the immediate release of the petitioners and directed the State to confirm their release.

Issues considered

Whether the failure of the Advisory Board to submit its report within eight weeks under Section 16(1) of the Jammu & Kashmir Public Safety Act invalidates the continued detention of the petitioners.
Whether such failure violates the constitutional guarantees of personal liberty under Article 21 and the procedural safeguards for preventive detention under Article 22.

Legislation cited

Constitution of Indias. 21, s. 22(4), s. 22(5), s. 22(6), s. 22(7)
Jammu & Kashmir Public Safety Act, 1978s. 15, s. 16(1), s. 8

Subjects

preventive detentionpublic safety actadvisory boardhabeas corpusArticle 21Article 22constitutional rightsJammu & Kashmir

Judgment

A t4~
ASHO.K KUMAR BINNY AND iiANSRAj
v.
B STATE OF JAMMU & KASHMIR & OTHERS
i

December 10, 1981

[ R.S. PATHAK AND E.S . VENKATARAMIAH, JJ.]
c
Jammu and Kashmir Public Safety Act 1978 Section 16( I) scope of.

The petitioners were detained under the Jammu & Kashmir Public Safety
Act 1978. Their cases were referred to the Advisory Board, which did not sub-
-
mit its report yet to the Government, although eight weeks from the date of
D detention had already expired. It was argued that there was a violation of sub
section (I) of Section 16 of the Public Safety Act and therefore, further detention
of the petitioners was invalid.

Accepting the petitions it was,
E
HELD : (1) The petitioners enjoy a fundamental right under Article 21
of the Constitution not to be deprived of their personal liberty, except according
to procedure established by law. In ca5,cs where a Government resorts to preven-
tive detention, Clauses (4) to (7) of Article 22 prescribe the conditions relating to
preventive detention. A perusal of th•!se Clauses will make it immediately appa-
rent that the constitution places the greatest emphasis on severely limiting the
F period of preventive detention and envisages time bound stages for the processing
of a case as it reaches its determination. The Jammu & Kashmir Public Safety
Act contains provisions which specify the successive stages and also prescribe the
period within which each stage must be completed, [143 H, 144 A-BJ
--
2. It is clear that the period prescribed by sub-s. (1) of s. 16 of the Act
for the submission of its report by the Advisory Board bas already expired. I-.
G Sub-s. (I) of s. 16 provides that the Advisory Board, after considering the material
before it and such further material as it may deem necessary and after hearing
the person concerned, shall "submit its report to the Government within eight
weeks from the date of detention." The obligation placed on the Advisory
Board to submit its report within the prescribed period must be construed strictly
in as much as the personal liberty of a person is involved and having regard to
H the emphasis which the Constitution has placed, and which emphasis is reflected
in the Act, on the necessity of expeditiously dete1 mining whether the detention of
the person concerned should be continued. [144 B-F]
.i.§Hok KUMAR v. J &K STATE £Pathak. h

Shri Mritunjoy Pramanik v. The State of West Bengal, [1972] 2 S.C.C. 586,
A
referred to.

ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos. 8333
and 8365 of 1981.
• B
(Under article 32 of the Constitution of India)

Bhim Singh and P.D. Sharma for the Petitioner>.

Altaf Ahmad for the Respondent.
c
The Judgment of the Court was delivered by

- PATHAK, J. The petitioners Ashok Kumar Binny and Hans
Raj have been detained by the Government of Jammu and
Kashmir under s. 8 of the Jammu & Kashmir Public Safety Act,
1978. They have filed these petitions for a writ in the nature of D
. __._ habeas corpus directing their release .

The petitioner Hans Raj was detained on 17th August, 1981
while the petitioner Ashok Kumar Binny was detained on I st
October, 1981. It is pointed out that although their cases have E
been referred to the Advisory Board, the Advisory Board has not
submitted its report yet to the Government, and as eight weeks
from the date of detention have expired there has been a violation
of sub-s. (I) of s. 16 of the Public Safety Act. In the circumstances,
it is urged, the further detention of the petitioners is invalid. When

- these petitions were called on for hearing, Mr. Altaf Ahmed,
appearing for the respondents, placed before us a wireless communi-
F

cation received by him from the State Government stating the
Advisory Board was programmed to sit today and instructing him
',-\ to seek adjournment in these cases. We are unable to grant the
adjournment because it seems to us that any proceeding now taken
by the Advisory Board can be of no consequence in supporting the G
further detention of the petitioners.

The petitioners enjoy a fundamental right under Article 21
not to be deprived of their personal liberty except according to
144 ~t.J1'REME COiJRt REPORTS (1982) 1 s.C.R.

A procedure established by law. In cases where the Government
resorts to preventive detention, clauses (4) to (7) of Article 22
prescribe the conditions relating to preventive detention. A perusal
of these clauses will make it immediately apparent that the Consti ·
tution places the greatest emphasis on severely limiting the period
of preventive detention and envisages time·bound stages for the
8 processing of a case as it reaches its determination. The. Jammu
and Kashmir Public Sefety Act contains provisions which specify
the successive stages and also prescribe the period within which
each stage must be completed. Section 15 declares that after a
detention order has been made the Government must, within four
weeks from the date of the d1etention order, place before, the
c Advisory Board the grounds on which the order has been made,
the representation made by the person effected by the order, and
where the order has been made by an officer, also the report by
such officer. Thereafter, sub-s. (1) of s. 16 provides that the
Advisory Board, after considering the material before it and such
D further material as it may deem necessary and after hearing the
person concerned, shall "submit ills report to the Government within
eight weeks from the date of detention". The obligation placed
on the Advisory Board to submit its report within the prescribed
period must be construed strictly inasmuch as the personal liberty
of a person is involved and having regard to the emphasis which
E the Constitution has placed, and which emphasis is reflected in the
Act, on the necessity of expeditiously determining whether the deten-
tion of the person concerned should be continued.

In the cases before us, it is dear that the period prescribed by
F sub-s. (!) of s. 16 of the Act for the submission of its report by
the Advisory Board has already expired. On that ground alone, it
must be held that the further de:tention of the two petitioners is
--
invalid. We are supported in this view by Shri Mritunjoy Pramanik
v. The State of West Bengal.(')
r,
G
We allow these writ petitions and direct the State of Jammu
and Kashmir and other respondents to release the petitioners

(I) [1972] 2 sec 586.
AsiloK KUMAR v. J & K STATE (Pathak, 1.) 14S

Ashok Kumar Binny and Hans Raj forthwith. Immediately A
on their release, the Chief Secretary, State of Jammu and
Kashmir, will intimate to this Court that their release has been
effected .

• B
N.K.A. Petitions allowed.

1

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