VIJAY KUMAR versus STATE OF J & K & OTHERS

Citation: [1982] 3 S.C.R. 522 · Decided: 17-03-1982 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Case Allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
522 
B 
c 
D 
VIJAY KUMAR 
v. 
STATE OF J & K & OTHERS 
March 17, 1982 
[D.A. DESAI AND BAHARUL {SLAM, JJ.) 
Jammu & Kashmir Public Safety Act, 1978~Section 13(1)-Detaining 
_authprity must gi¥t the dttenu earliest opportunity of making reprtsentation-
Forwarding detenu's representation to Goternment-Jail authorities-Mere channel 
of commqnication-Delay in transit-No excuse for delay in dealing with 
representation-Unexplained delay-Invalidates ·order of detention. 
The petitioner has arrested on June 26, 1981 under the Enemy Agent 
Ordinance. The Chief Judicial Magistrate rejected his application for bail on 
the ground that he had no jurisdiction to try him. Tho Addi. Sessions Judge 
rejected his bail application on the ground that as he was by then ordered to be 
detained under the J & K Public Safety Act tho bail application has become 
infructuous. 
The detention order dated July 11, 1981 was served on the detenue in Jail 
on July 15, 1981. His representation dated July 29, 1981 was forwarded to the 
E 
State Government on July 29. 1981 and simultaneously a wireless message was 
sent"on the same day. The representation was received by the Government on 
August 12, 1981. After investigation. the file was put up to tho Chief Minister 
on August 28, 1981 for approval. The Chief Minister rejected the representation 
on August 31, 1981 which Was communicated to the petitioner in jail on Septem~ 
ber 1, 1981. The detenu's case was referred to the Advisory Board on August 
3, 1981. Its report was submitted on September 4, 1981. 
F 
G 
H 
In this petition under art. 32 of the Constitution it was contended before 
this Court on behalf of the petitioner that as section 13 (1) of the Jammu & 
Kashmir Public S<ifety Act 1978 imposes an obligation·on the detaining authority 
to give the detenu the earliest oppOrtunity of making a representation against the 
detention order the long unexplained delay in this case had invalidated the order 
of detention. 
Allowing the petition, 
HELD : The petitioner's representation had not been dealt with as 
expeditiously as possible. There was therefore contravention of section 13 of the 
Act which invalidated the detention. [532 D] 
Preventive detention, unlike punitive detention, does not afford all 
opportunity to \he detenu to explain his sid~ Qf \11• matter l?efoi~ !I~ is .deprive4 t
VIJAY KUMAR v. J & K STATS 
523 
or his liberty and therefore the statute makes it obligatory on the authorities to 
afford him ttie earliest opportunity to represent his case and a corresponding 
obligation on the autho'rity to consider the representation. The word "earliest" 
which qualifies the term "opportunity" must equalliqualify the corresponding 
obligation of the State to deal with the representation iC and when made as 
expeditiously as possible. [529 H; 530 A-Bl 
The jail authorities who are merety a communicating channel have to 
move with promptitude so that sufficient guarantee of affording earliest opportu .. 
nity of making the representation and the same reaching the Government is 
translated into action. The corresponding obligation of the State to consider 
the representation cannot be whittled down by merely saying that time was lost 
in transit. The State Government must aear up its own machinery to see that In 
these cases the representation reaches the Government as early as possible and is 
considered by the authorities with equal promptitude. Any unexplained delay 
would bo denial of the statutory protection given to tho dotonu. [530 0-G] 
Ill the instant case there were two time lags : the representation handed 
in to the Jail Superintendent on July 29, 1981 reached the Government on August 
12, 1981 after a time lag of fourteen days and tho representation was disposed of 
on August 31, 1981 after a time lag of nineteen days and the delay has not been 
explained on any convincing ground. [531 F, 532 BJ 
Khudi Ram Da.t v. Stat• of W••I Bef18a/, [1975) 2 SCC 81, referred to. 
' 
Preventive detention is resorted to~ to thwart future action. lf the dctenu 
is already in jail charged with a serious offence, he is thereby prevented from 
acting in a manner prejudicial to the security of the State. Where there is need 
to Order preventive detention of a person already in jail the detaining authority 
mu1t disclose awareness of the fact that the ~rson against whom an order of 
preventive detention is being ruade is to the knowledge or the authority already 
in jajl and yet for compell

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