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Judgment
This order will dispose of the above titled LPSs arising out of orders passed by learned Single Judge (Hon'ble Mr. Justice R.P. Sethi) dated
28887 dismissing writ petitions in the nature of Habeas Corpus filed by the appellants against the detention orders passed by the respondent under
Public Safely Act, 1978 as bar to challenge detention under public Safely Act, 1978 while in the remaining petitions dismissed, same principle of
law has been adopted for disposal.
The facts which gave rise to these appeals are that the appellants in separate Habeas Corpus petions mentioned in the orders impugned
challenged the detention orders of the detenues, passed in different ground on different dates. The petitions came up for heating before the eared
single Judge, who by his order dated. 28887 and 3987 impugned in these appeals, dismissed the petitions apparenty holding that section 10A of
the Act of 1978 (Public Safety Act, 1978), is bar to challenge the detention order under the said Act. The appeals indicated came up for hearing
before us firstly on 261087 when Mr. Altaf. Advocate General, at the very outset conceded the point raised by the appellants that S. 10A of the
Public Safety Act, 1978 (hereafter to be referred to as the Act of 1978), is no bar to challenge the detention under the said Act. However, learned
counsel for the appellants wanted to argue the matter on other points resulting adjournment in the appeal.
We have heard learned counsel for the parties. The argument of learned counsel for the appellants regarding the merits of the grounds of
detention that the learned single Judge besides holding on sec. 10A of the Act of 1978, has disposed the petitions after considering the facts also.
Molvi Aijaz, Government Advocate, argued that if the appeals are heared on all points and disposed finally despite Advocate General having
conceded on the main point of S. 10A of the Act of 1978, which warrants remand of the case, the respondents apprehend to lose one forum of
appeal.
We have considered the arguments advanced on both the sides and gone through the orders impugned in these appeal.
What the learned single Judge has done, reproduced the grounds of detention in the order impugned in the three petitions disposed by a common
order as indicated, without any discussion on the grounds keeping the material against the detenues on grounds of detention in tact not rejecting the
plea of the appellants in respect of these grounds. While in the remaining petitions the learned Single Judge has neither quoted nor discussed the
grounds of detention, simply making reference to S. 10A of the Act of 1978 as bar to challenge detention under the Act of 1978, while in order dt.
3987 in petition No.: 57/87 the learned single Judge but simply, while dismissing the petition refened to decisions in petitions 27. 28 and 29, the
orders of which are in challenge before us. This approach to the appellants cases prompts us to observe that the learned single Judge has failed to
consider the petitions on merits resulting warrant of disposal of petitioner afresh on the pleas raised which appear to us, have been ignored from
consideration totally for final disposal of the challenge set against the grounds of detention in all the petitions.
As we have indicated, the petitions have been disposed on the interpretation of Amended Sec 10A of the P. S. Act, holding it a bar to challenge
detention under the Act of 1978. While accepting the plea of the learned Advocate General, we need to observe the interpretation put on S. 10A
by the learned Single Judge appears to us absolutely misconceived for reason the aim and object of the said S. 10A is indicated in the preamble of
the provision itself (grounds of detention severable) which we need to reproduce for ready reference hereunder:
S. 10A"" Grounds of detention severable:
where a person has been detained in pursuance of an order of detention u/s 8 which has been made on two or more grounds, such order of
detention shall be deemed to have been made separately on each of such grounds and accordingly.
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are;
i. Vague,
ii. nonexistent,
iii. nonrelevant,
iv. not connected or not proximately connected with such person, or
v. invalid for any other reasons whatsoever, and it is not, therefore, possible to hold that Govt or officer making such order would have been
satisfied as provided in S. 8 with reference to the remaining ground or grounds and made the order of detention.
From the bare reading of the provision quoted and held as a bar by the single Judge to challenge detention under the Act of 1978, in fact is
enabling provision for survival of the detention order under the Act on several grounds, even one or some grounds served, may be vague,
nonexistent, not relevant, not connected or for similar other reason, still detention order cannot be quashed even if a single ground survives the test
of scrutiny of above indicated defects before the court, contrary to earlier decisions announced by the Hon'ble Supreme Court including this Court,
before incorporation of Amended S. 5A in National Security Act of which S. 10A of the Act of 1978 is a true copy, due to defect in any grounds
of detention, the whole detention order got quashed which ultimately prompted the Executive to put forth the amendments both at Union and State
level (in J&K) in the Acts to make grounds of detention severable in the light of clauses (i) to (v) of 10A of the Public Safety Act. If the grounds of
detention are tainted as per clauses (i) to (v) of the said S. 10A, the order will fail. But if any one of the grounds served escaped the application of
clauses (i) to (iv) or any other similar defect, hinted in clause (v), then the detention order against the detenue will survive despite the defects
defined in other grounds served. Courts under the Public Safety Act in J&K are infact called upon to make departure from the earlier decisions on
the subject prior to the amendment in the Act to comb the grounds served to a detenue separately on scrutiny in the light of Clauses (i) to (v) of S.
10A of the Act, not to invalidate the detention order if it does not fall within the defects indicated and for that matter even single ground served will
keep the detention order challenged before the court in fact, and that in fact, is the aim and object of incorporation of S. 10A in the Act of 1978
and it does not exclude the jurisdiction of the court to entertain a petition for detention u/s 8 of the Act as held by learned single Judge.
In support of our opinion we need to refer to a decision of Supreme Court reported in AIR: 1985: SC: 18, wherein their lordships have while
considering a petition under National Security Act noticing application of S. 5A of the National Security Act, an identical provision in all respects
to S. 10A of Public Safety Act, 1978, have set aside the detention in that case on other grounds despite existence of a provision, the implication of
which is under consideration before us.
Therefore, following the above principle, the supremancy of the courts for judicial security of detention order under National Security Act by
Highest court of the land stands established which principle solidly applies to the detention orders passed u/s 8 of the Act of 1978, by the
respondents. This view defeats the opinion of the learned single Judge that S. 10A of the Act applies as bar to challenge a detention order passed
under the Act of 1978. Further we have to bear in mind that all laws, regulation whether at the Union or State level find their tune in the
Constitution of India, therefore, the detaining Authority cannot be imunised of the supreme directions specifically provided in Art 22 of the
Constitution of India in respect of a detenue for preventive detention even the formalities provided u/s 8 of the Act of 1978 if not complied with by
the detaining Authority, the court alone has authority to set at naught the wrong detention as the formalities under S. 8 of the Act of 1978 are
mandatory in nature.
Keeping in view the observations made we are of the opinion that the learned single Judge has erred while dismissing the petitions apparently
on the sole ground that section 10A of the Act of 1978 serves as bar to challenge detention orders under Public Safety Act, 1978 in the cases
indicated which we hold a wrong interpretation of law. We therefore, set aside the orders dated 28887 and 3987 impugned in these appeals and
remit the cases back to the learned single Judge for disposal of the petitions afresh in accordance with law. The petitions appear to have been
presented long back, same be listed before any available single Bench on a early date to be fixed by the Deputy Registrar.
The appeals are accordingly allowed and disposed of.