ASHOK KUMAR BINNY AND HANSRAJ versus STATE OF JAMMU & KASHMIR & OTHERS

Citation: [1982] 2 S.C.R. 142 · Decided: 10-12-1981 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Case Allowed

Judgment (excerpt)

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ASHO.K KUMAR BINNY AND iiANSRAj 
v. 
STATE OF JAMMU & KASHMIR & OTHERS 
December 10, 1981 
[ R.S. PATHAK AND E.S .. VENKATARAMIAH, JJ.] 
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 
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, 
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 
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. 
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 
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] 
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.i.§Hok KUMAR v. J & K STATE £Pathak. h 
Shri Mritunjoy Pramanik v. The State of West Bengal, [1972] 2 S.C.C. 586, 
referred to. 
ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos. 8333 
and 8365 of 1981. 
(Under article 32 of the Constitution of India) 
Bhim Singh and P.D. Sharma for the Petitioner>. 
Altaf Ahmad for the Respondent. 
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 
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 
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-
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 
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 
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144 
~t.J1'REME COiJRt REPORTS 
(1982) 1 s.C.R. 
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

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