S KESAR SINGH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) THIS petition asks for a writ of Habeas Corpus to secure the release of S. Sant Singh who has been detained under the State Preventive Detention Act. The petitioner is the brother of the detenu. The order of detention dated 3rd April 1962 was made under Section 3 (1) (a) (i) of the Jammu and Kashmir Preventive Detention Act with a view to preventing the detenu from acting in any manner prejudicial to the security of the State. The order was forwarded to Shri A. K. Mengi, Dy. Superintendent of Police C. I. D. for execution and S. Sant Singh was arrested on 4-4-62 and detained in the Katnua sub-jail, the Superintendent of which is the second respondent in this writ petition.

(2.) THE first respondent is the State. The petition as well as the affidavit dated 29-5-62 in support thereof has set out five grounds of attack against the detention. On 4th July 1962 the detenu himself filed an affidavit. At the hearing of the petition, the petitioner's learned Counsel relied almost entirely on the affidavit of the detenu and based his arguments on the statements made in that affidavit. Four out of the five grounds set up in the petition to challenge the detention were abandoned, and only ground No. 2 which related to the mala fides of the order of detention was sought to be urged. At the same time certain additional grounds which were not mentioned in the petition were rigorously put forward in support of the petition. These new grounds were built upon the statements made in the affidavit of the detenu. Although it was expressly stated in the petition as a ground of attack that S. Sant Singh was arrested without any warrant whatsoever, it was not pressed at the hearing of the petition. Instead, it was urged that S. Sant Singh was not shown the warrant by the arresting officer and that the substance of the warrant of arrest was not notified to him. This contention finds some factual support in the averments made in the affidavit filed by S. Sant Singh, detenu, on 47-62. The entire contention is based upon Section 80 of the Criminal P. C. 1989.

(3.) BEFORE dealing with the facts, I think it is proper to deal with the legal aspect of the matter for if the contention is devoid of legal foundation, it may not have to be pursued further. Section 4 of the J. and K. Preventive Detention Act reads: