TMI Blog1982 (3) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... though there was nothing in the C.D. File about his (Petitioner) involvement in E.A.O. (Enemy Agents ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is u/s 3, E.A.O. which this Court is not competent to try. Hence this application is returned to the applicant for presentation to the proper court alongwith report The detenu thereupon moved an application for releasing him on bail before the learned Additional Sessions Judge, Jammu, who, we are informed, was competent to try the accused charged with an offence under Enemy Agents ordinance. His petition for bail came up before the learned Additional Sessions Judge on July 11, 1981 when the following order was made: This application pertains to Vijay Kumar accused who is involved for an offence under the Enemy Agents ordinance which is being investigated by the Counter Intelligence Police, Jammu. The learned Chief Prosecuting officer and the learned counsel for the accused have been heard. During the course of arguments an order has been A shown to me by the police that said Vijay Kumar accused has now been ordered to be detained under the Public Safet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Habeas Corpus. Section 8 of the Act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the State. The impugned order of detention recites that the detenu is detained with a view to preventing him from 'acting in any manner prejudicial to the security of the State.' The expression 'acting in any manner prejudicial to the security of the State' has been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use offence, to overthrew or overawe the Government established by the law in the State. The detenu contended before the High Court that accepting all the activities attributed to the detenu in the grounds of detention at their face value. the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the State.' The definition of the expression as here in before extracted indicates that the person accused of 'acting in any manner prejudicial to the security of the State' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foot note in the order that the order was forwarded to the S P., C.I D. Counter Intelligence, Jammu for execution of the order under section 3 of the Act. The further direction was that notice of the order shall be given to Vijay Kumar s/o Anant Ram, r/o H. No. 609, Peer Mitha, Jammu, by reading over and explaining the same to him in language he understands. The detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail yet on the material placed before him he was satisfied that a detention order ought to be made. There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than lo days before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and therefore power under section 8 of the Act is required to be . exercised. The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct date being June 25, 1981, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. We, however, do not base our order on this ground. The second contention which in our opinion goes to the root A of the matter is that there has been a violation of section 13 of the Act. Section 13 provides as under: 13. Grounds of order of detention to be disclosed to persons affected by the order:-(I) 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 five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government. x x x The provision contained in section 13 (1) is on par with the constitutional protection conferred by Article 22 (5) of the Constitution of India. The contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation through the jail authorities. The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity 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 much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 28, 1981, and the Chief Minister (Home) rejected the representation on August 31, 1981, and the fact of rejection of the representation was communicated to the detenu on September 1, 1981. There are two time lags which may be noticed. Representation admittedly handed in the Superintendent of Jail on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days. The second lime lag is, from our point of view, more glaring. Even though the concerned office was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the . first query about its non-receipt came as per the wireless message dated August 6, 1981. That can be overlooked, but it has one important message. The concerned office was aware of the fact that a representation has already been made and a duplicate was sent for. With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being August 12, 1981. If the representation was received on August 12, 1981, and the same office disposed it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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