Khanna, J. - (1.) This is a petition through Jail under Article 32 of the Constitution for issuing a writ of habeas corpus by Suna Ullah Butt, who has been ordered by the District Magistrate Poonch to be detained under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 (hereinafter referred to as the Act) with a view to preventing him "from acting in any manner prejudicial to the security of the State."
(2.) The order of detention was passed by the District Magistrate on October 24, 1971. In pursuance of the detention order, the petitioner was taken into custody the same day and was explained the substance of the detention order. The petitioner was thereafter kept in Central Jail Jammu. The grounds of detention were communicated to the petitioner on November 1, 1971 in accordance with Section 8 of the Act, which requires that such grounds should be communicated to the detenu as soon as possible but not later than 10 days from the date of detention. The order of detention was approved by the Chief Minister, who was incharge of the Home Department, on. November 12, 1971. The case of the petitioner was placed before the Advisory Board on December 16, 1971. The Board communicated its opinion of February 19, 1972 that the detention of the petitioner was justified. An order confirming the detention order was thereafter made by the State Government on March 3,1972 under section 12 of the Act. The grounds of detention gave the following particulars: "You, Son Ullah s/o Khawaja Mahad Joo r/o Sri Chohana, P/S Surankot, District Poonch, were recruited as a source by Cap. Kiani and Subedar Shah of Pak Intelligence in 1968, when you had crossed over to POK and settled at Palandri. 2. Working as source of the above mentioned officers, you introduced Abdul Ghani s/o Asda Rather resident of your own village, Rafic s/o Goffar Joo r/o Poonch and Ghulam Mohi-ud-Din s/o Karim Joo r/o Seri Chohana with Pak Intelligence, who were recruited as sources by them. These sources supplied vital Indian Army informations to Pak Intelligence. 3. You at the instance of above mentioned officers of Pak Intelligence crossed over to our side in September 1971 with the purpose of further supplying Indian Army informations to Pak Intelligence. In view of the above your activities were found extremely prejudicial to the security of the State, hence you were detained under the J. and K. Preventive Detention Act, so that you are prevented from indulging in such nefarious activities." The petition has been resisted by the State of Jammu and Kashmir and other respondents, and the affidavit of Shri Mohammad Amin, Additional Secretary to the Government of Jammu and Kashmir, Home Department, has been filed in opposition to the petition.
(3.) Arguments have been addressed by Mr. Om Parkash amicus curiae on behalf of the petitioner, while the respondents have been represented by Mr. R. H. Dhebar. The first contention which has been raised by Mr. Om Prakash on behalf of the petitioner is that he was arrested on October 6, 1971 and was already w in custody when the detention order was made against him on October 24, 1971. It is stated that no detention order can legally be made against a person who is already in custody on the date of the detention order. It is, in our opinion, not necessary to express an opinion on the abstract proposition of law that no detention order can be made against a person who is already in custody on the date of the making of such order because, in the present case, we find that the petitioner was not in custody on October 24, 1971 when the order for his detention was made. As no express ground had been taken by the petitioner in his petition that the detention order was not legal because of his being in custody on the date of the making of that order, no averment was made in the affidavit initially filed on behalf of the respondents on the point as to whether the petitioner was or was not in custody on the date the detention order was passed. When an argument on that score was advanced, we adjourned the case to enable the respondents to file affidavit on the point. Two affidavits have thereafter been filed on behalf of the respondents. According to the affidavit of Shri Krishanlal Gupta, Station House Officer, Police Station, Poonch, the petitioner was arrested on October 6, 1971 in a case under the Internal Movement Control Ordinance, Public Security Act, Enemy Agent Ordinance and Indian Arms Act. The petitioner was, however, released in that case on October 20, 1971. It is further in the affidavit of Shri Gupta that the petitioner was not in the custody of the police on October 24, 1971 when the order for his detention was made. The other affidavit which has been filed is that of Dr. Ravindra Gupta, officiating Superintendent of Central Jail Jammu. According to Dr. Gupta the records show that the petitioner was brought to Central Jail Jammu on October 26, 1971 in pursuance of order dated October 24, 1971 of the District Magistrate Poonch. There appears to be no cogent ground for disbelieving the statement contained in the affidavits of Shri Krishanlal Gupta and Dr. Ravindra Gupta. It is manifest from these two affidavits that the petitioner was not in custody on October 24, 1971 when the order for his detention was made by the District Magistrate.;