FAZAL HUSSAIN AND ARSHAD AHMAD versus THE STATE OF JAMMU AND KASHMIR

Citation: [1970] 1 S.C.R. 684 · Decided: 29-07-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Judgment (excerpt)

l<'AZAL HUSSAIN AND ARSHAD AHMAD 
v. 
THE STATE OF JAMMU AND KASHMIR 
July 29, 1969 
(S. M. Suw, G. K. MITTER AND K. S. HEGDE, JJ.) 
J11mmu and K~hmir Pre»entive Detention Act, 1964 s. 3(1 )(a) (i) 
and s. 8-lnfor1na11on to detenu that it would be against puhlic interest 
to communicate grounds of detenJion to him-It must be given lvithin 10 
dars. 
B 
In a pelilion under article 32 of the Constilution the firs! petitioner'• c 
<le1enlion under s. 3 (I )(a)(i) of the Jammu and Kashmir 
i'revenlive 
Dctenlion Ac!, 1961 was challenged as illegal on the basis thal no grounds 
of dclention were served on him but that an order infornJing bin1 that it 
\\·oul<l be against public interest to disclose the grounds to ilim was scrvrd 
on him after the expiry of 10 days prescribed in section S; it 'Nas con-
tended that his detention was, therefore. iJlegal. 
In the case of the second petitioner it was claimed that the affidavit 
D 
in reply _to the petition which set out the facts relating to lhl'- service of the 
order of detention and an order under the proviso to Sc!Ction 8 was swora. 
to by an Additional Secretary on the basis of information <ll!rived from 
the record of the case and not by the Jail Superintendent who wa!. i.lleg~d 
to have served the orders on the dctenu. 
HELD : (I) The delenlion of !he firs! pe1i1ioner was illegal and he 
mu.;;t be released. 
E 
h i' the duty of the detaining authority to communicate the j..rounds 
of detention within 10 days of the date of detention if the case does not fall 
within the proviso to s. 8. If the detaining authority neither communicates 
the grounds of detention nor infonns the detenu under the proviso •vithin 
I 0 days of the de1en1ion. the delention would becnme illogd a"d a subse-
quent order under the proviso would not have the effect of rendC"ring the 
dclcnlion legal. 
F 
Abdul Jabar Butt v. Srate of lammu and Kashmir, [1957) S.C.R. 51, 
59. 
(2) The petition filed by !he second petitioner must be dismissed. 
The State had annexed to its affidavit a copy of the Government deten-
tion order on which the Jail Superintendent had endorsed the f:ict of its 
5crvice. 
In view of this it was not necessary for the Superintendent to 
have filed an affidJvit of having effected service. 
ORIGINAL JURISDICTION : Writ Petition No. 111 of 1969. 
Petition under Art. 32 of the Constitution of India for a writ 
in the nature of habeas corpur. 
R. K. Garff ~ 
Anil Kumar Gupta, for the petitioners. 
R. Gopalakrishnan an:I R. N. Sachthey, for the re~ndent. 
G 
H 
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...
A 
B 
c 
D 
E 
F 
G 
H 
FAZAL HUSSAIN v. J, & K, STATE (Sikri, !.) 
685 
The Judgment of the co.urt was delivered by 
Sikri, J. 
This is a join~ petition by two detenues under art. 
32 of the Constitution praying for the issue of a writ of habeas 
corpus or other appropriate writ, direction or order directing that 
the petitioners be released. 
The petitioner, Arshad Ahmad, was detained in pursuance of 
Detention Order dated September 
19, 1967, passed under s. 
3(l)(a)(i) of the Jammu & Kashmir Preventive Detention Act, 
1964. The copy of the order on the record shows that the order 
was served on the detenu by Jaswant Singh, Deputy Superinten-
dent of Police (CID), Jammu on September 27, 1967. 
No grounds of detention were served on the detenu, but an 
order dated October 25, 1967, issued by the Secretary to the 
Government, Home Department, was served on him informing 
him th:it it would be against the public interest to· disclose the 
facts or tlie grounds of detention to him. 
The learned cqunsel for the petitioner, Mr. Garg, contends 
that the order dated October 25, 1967, was served too late and 
the detention of the petitioner became illegal when the time for 
serving the ground,s of detention had expired. 
Section 8 of the J ammu and Kashmir Preventive Detention 
Act, 1964, provides that "when a person is detained in pursuance 
of a detention order, the authority making the order shall, as 
soon as may be, but not later than ten days from the date of deten-
tion, communicate to him the grounds on which the order has 
been made, and shall afford him the earliest opportunity of mak-
ing a representatidn against the order to the Government." But 
the proviso to s. 8 states : 
"Provided that nothing in this 
sub-section shall 
apply to the case of any person detained with a view to 
preventing him from acting in any manner prejudicial 
to the security of the State, if the authority making the 
order, by the same or a

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