Jammu and Kashmir act 006 of 1978 : The JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978

Section 1. Short title and extent.

(1) This Act may be called the Jammu and Kashmir Public Safety Act, 1978.

(2) It extends to the whole of ¹[Union territory of Jammu and Kashmir].

1. Construed by S.O. 3912(E) dated 30.09.2019 for “Jammu and Kashmir State”.

Section 2.Definitions.

In this Act, unless there is anything repugnant in the subject or context,––

(1) “the Code” means the ¹[Code of Criminal Procedure, 1973 (2 of 1974)] ;

(2) “notified” and “notification”means notified and notification respectively in the ²[Government Gazette].

1. Substituted by S.O. 1229(E) dated 31.03.2020 for “Code of Criminal Procedure, Samvat 1989”.
2. Now Official Gazette.

Section 3.Prohibited places.

(1) If as respects any place the Government considers it necessary or expedient that special precautions should be taken to prevent the entry of unauthorised persons, the Government may, by notified order, declare that place to be a prohibited place.

(2) No person shall, without the permission of the Government or the authority specified by the Government, enter or be on or in, or pass over, or loiter in vicinity of, any prohibited place.

(3) Where in pursuance of sub-section (2) any person is granted permission to enter, or to be on or in, or to pass over, a prohibited place, that person shall, while acting under such permission, comply with such order for regulating his conduct as may be given by the Government or the authority specified by the Government.

(4) Any Police Officer, or any other person authorised in this behalf by the Government, may search any person entering or seeking to enter or being on or in, or leaving a prohibited place, and any vehicle, aircraft or article brought in by such person, and may, for the purpose of the search, detain such person, vehicle, aircraft and article :

Provided that no female shall be searched in pursuance of this subsection except by a female.

(5) If any person is in a prohibited place in contravention of this section then, without prejudice to any other proceedings which may be taken against him, he may be removed therefrom by any Police Officer not below the rank of a sub-inspector or by any other person authorised in this behalf by the Government.

(6) If any person is in a prohibited place in contravention of any of the provisions of this section he shall be punishable with imprisonment for a term which may extend to one month, or with fine, or with both.

Section 4. Protected areas.

(1) If the Government considers it necessary or expedient in the interests of the defence or security of the ¹[Union territory of Jammu and Kashmir] to regulate the entry of persons into any area, it may by a notified order declare the area to be a protected area and thereupon, for so long as the order is in force, such area shall be a protected area for the purposes of this Act.

(2) The Government or the authority specified by the Government may regulate the entry of any person into a protected area.

(3) If any person is in a protected area in contravention of the provisions of any order passed under this section then, without prejudice to any other proceedings which may be taken against him he may be removed therefrom by or under the direction of any Police Officer not below the rank of a Sub-Inspector.

(4) If any person is in a protected area in contravention of any of the provisions of this section, he shall be punishable with imprisonment for a term, which may extend to two months, or with fine, or with both.

1. Substituted by S.O. 1229(E) dated 31.03.2020 for “State”.

Section 5.Forcing or evading a guard.

Any person who effects or attempts to effect entry into a prohibited place or a protected area after taking precautions to conceal his entry or attempted entry from any person posted for the purpose of protecting or preventing or controlling access to such place or area shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.

Section 6.Power to prohibit circulation within the State or entry into the State of certain documents.

(1) The Government, or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purposes of preventing or combating any activity prejudicial to the maintenance of communal or sectarian, or regional harmony affecting or likely to affect public order, may, by notified order, regulate, or restrict the circulation within the ¹[Union territory of Jammu and Kashmir], or prohibit or restrict the importation into the ¹[Union territory of Jammu and Kashmir], of any document :

Provided that no such order shall remain in force for more than three months from the making thereof unless before the expiry of such period and in case the High Court does not otherwise direct, the Government, by an order made in the like manner, extend it by any period not exceeding three months at a time as it thinks fit, so, however, that the total period of the original order does not exceed one year :

Provided further that a person aggrieved by such order may, within ten days of the passing thereof, make a representation to the Government which may on consideration confirm, modify or rescind the order within 21 days of the making of the representation after giving the aggrieved party an opportunity of being heard :

Provided also that in case the representation is rejected by the Government, the aggrieved person may within a period of two months from the date of the order rejecting the representation apply to the High Court to set aside such order. Every such application shall be heard and determined by a Special Bench of the High Court composed of three Judges.

(2) Any person who contravenes an order made under this section shall be punishable with imprisonment for a term which may extend to three months or with fine, or with both.

(3) In the event of disobedience of an order mad under sub-section (1) the Government or the authority issuing the order, may, without prejudice to the penalty to which the person guilty of the disobedience is liable under subsection (2), order the seizure of all copies of any such document.

1. Substituted by S.O. 1229(E) dated 31.03.2020 for “State”.

Section 7.Removal of doubts.

For the removal of doubts it is hereby declared that the restriction imposed by section 6 on the rights conferred by clause (1) of Article 19 of the Constitution of India shall be deemed to be reasonable restrictions.

Section 8. Detention of certain persons.

(1) The Government may––

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to––

(i) the security of the ¹[Union territory of Jammu and Kashmir] or the maintenance of the public order ; or

²[(ii) Omitted.]

³[(a-1) if satisfied with respect to any person that with a view to preventing him from––

(i) smuggling ⁴[timber or liquor] ; or

(ii) abetting the smuggling of ⁴[timber or liquor] ; or

(iii) engaging in transporting or concealing or keeping smuggled timber ; or

(iv) dealing the smuggled timber otherwise than by engaging in transporting or concealing or keeping in smuggled timber ⁵[or liquor] ; or

(v) harbouring persons engaged in smuggling of timber ⁵[or liquor] or abetting the smuggling of timber ⁵[or liquor] ; or

(b) if satisfied with respect of such person who is––

(i) a foreigner within the meaning of the Foreigners Act,

(ii) a person residing in the area of the ¹[Union territory of Jammu and Kashmir] under the occupation of Pakistan,

that with a view to regulating his continued presence in the ¹[Union territory of Jammu and Kashmir] or with a view to making arrangements for his expulsion from the ¹[Union territory of Jammu and Kashmir],

it is necessary so to do, make an order directing that such person be detained.

(2) Any of the following officers, namely :––

(i) Divisional Commissioners,

(ii) District Magistrate,

may, if satisfied as provided in sub-clauses (i) and (ii) of clause ⁶[(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said sub-section.

(3) For the purposes of sub-section (1),––

⁷[(a) Omitted.]

(b) “acting in any manner prejudicial to the maintenance of public order” means––

(i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region ;

(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order ;

(iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the ⁸[Indian Penal Code (45 of 1860)] where the commission of such mischief disturbs, or is likely to disturb public order ;

(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offences disturbs, or is likely to disturb public order ;

⁹[(c) “smuggling” in relation to timber or liquor means possessing or carrying of illicit timber or liquor and includes any act which will render the timber liable to confiscation under ^*[Forest Act, Samvat 1987] or under the Jammu and Kashmir Excise Act, 1958, as the case may be ;]

¹⁰[(d) “timber” means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood ;]

¹¹[(e) “Liquor” includes all alcoholic beverages including beer ;]

¹²[(f) “person” shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) thereof].

(4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.

1. Substituted by S.O. 1229(E) dated 31.03.2020 for “State”.
2. Omitted by Act XII of 1988, s. 2.
3. Clause (a-1) inserted by Act IV of 1985, s. 2.
4. Substituted by Act VIII of 2001, s. 2.
5. Substituted by Act VIII of 2001, s. 2.
6. Inserted by Act IV of 1985, s. 2.
7. Omitted by Act XII of 1988, s. 2.988, s. 2.
8. Substituted by S.O. 1229(E) dated 31.03.2020 for “Ranbir Penal Code”.
9. Clause (c) substituted by Act VIII of 2001, s. 2.
* Now Indian Forest Act, 1927 (16 of 1927).
10. Clause (d) inserted by Act IV of 1985, s. 3.
11. Clause (e) inserted by Act VIII of 2001, s. 2.
12. Clause (f) inserted by Act VII of 2012, s. 2.

Section 9.Execution of detention orders.

A detention order may be executed at any place in the manner provided for the execution of warrants of arrest under the Code.

Section 10. Power to regulate place and conditions.

Any person in respect of whom a detention order has made under section 8 shall be liable––

(a) to be detained in such place and under such conditions including conditions as to the maintenance of discipline as the Government may, by general or special order, specify, and

(b) to be removed from one place of detention to another place of detention ¹[x x x x] by order of the Government :

²[x x x x]

1. Words “in the State” omitted by Act VIII of 2002, s. 2.
2. Proviso omitted by S.O. 1229(E) dated 31.03.2020.

Section 10-A.Grounds of detention severable.

¹[10-A. Grounds of detention severable.–– Where a person has been detained in pursuance of an order of detention under section 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) non-existent,

(iii) not relevant,

(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 the Government or officer making such order would have been satisfied as provided in section 8 with reference to the remaining ground or grounds and made the order of detention ;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.]

1. Section 10-A inserted by Act IV of 1985, s. 3.

Section 11.Detention orders not to be invalid or inoperative on certain grounds.

No detention order shall be invalid or inoperative merely on the ground,––

(a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the officer making the order ; or

(b) that the place of detention of such person is outside the said limits.

Section 12.Powers in relations to absconding persons.

If the Government, or an officer specified in sub-section (2) of section 8, as the case may be, has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government or the officer may––

(a) make a report in writing of the fact to a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides, and thereupon the provisions of sections 87, 88 and 89 of the Code shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate ;

(b) by notified order direct the said person to appear before such officer, at such place and within such period as may be specified in the order, and if the said person fails to comply with the direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to ¹[one year] or with fine or with both.

1. Substituted by Act XII of 1988, s. 3.

Section 13.Grounds of order of detention to be disclosed to persons affected by the order.

(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, ²[but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention] ¹[communicate to him, in the language which is understandable 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.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

1. Substituted for certain words by Act VII of 2012, s. 3. 2. Substituted by Act XII of 1988, s. 3.

Section 14.Constitution of Advisory Board.

(1) The Government shall, whenever necessary, constitute an Advisory Board for the purposes of this Act.

(2) Such Board shall consist of a Chairman, who is or has been a Judge of the High Court, and two other members who are, or have been, or are qualified to be appointed as Judges of the High Court.

¹[(3) The Chairman and the other members of the Board shall be appointed by the Government on the recommendations of the Search-cum-Selection Committee consisting of the following :––

(a) Chief Secretary ...Chairman ;

(b) Administrative Secretary, ...Member ;
Home Department

Provided that no sitting Judge of the High Court or the sitting District and Sessions Judge shall be appointed as Chairman or Member of the Board except in consultation with the Chief Justice of the High Court.]

²[(4) The Chairman and members of the Board shall hold the office for a period of three years which will be extendable for a further period of two years.]

1. Sub-section (3) substituted by S.O. 1229(E) dated 31.03.2020.
2. Sub-section (4) inserted by Act VII of 2012, s. 4.

Section 15.Reference to Advisory Board.

In every case where a detention order has been made under this Act, the Government shall, within four weeks ¹[from the date of detention under the order] place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 8.

1. Substituted by Act II of 1982, s. 2.

Section 16. Procedure of Advisory Board.

(1) The Advisory Board shall, after considering the material placed before it and, after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within ¹[six weeks] from the date of detention.

(2) Notwithstanding anything contained in sub-section (1), the Board may, if the person detained so demands, at any time before submitting its report, after affording an opportunity to the person detained and the Government or the officer, as the case may be, of being heard, determine whether the disclosure of facts, not disclosed under sub-section (2) of section 13 to the person detained, is or is not against public interest. Such finding of the Board shall be binding on the Government.

(3) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.

(4) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.

(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.

1. Substituted for eight weeks by Act VII of 2012, s. 5.

Section 17.Action upon report of Advisory Board.

(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.

Section 18.Maximum period of detention.

¹[18. Maximum period of detention. ––(1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 17, shall be––

(a) ²[three months in the first instance which may be extended up to twelve months] from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order ³[x x x] ;

⁴[(a-1) twelve months from the date of detention in the case of the persons indulging in smuggling of timber ; and]

(b) ⁵[six months in the first instance which may be extended up to two years] from the date of detention in the case of persons acting in any manner prejudicial to the security of the ⁶[Union territory of Jammu and Kashmir].

(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or to extend the period of detention of a foreigner in case his expulsion from the ⁶[Union territory of Jammu and Kashmir] has not been made possible.]

1. Substituted by Act XII of 1988, s. 2.
2. Substituted for the words “twelve weeks” by Act VII of 2012, s. 6.
3. Words “or indulging in smuggling of timber ; and” deleted ibid.
4. Clause (a-1) inserted ibid.
5. Substituted for the words “two years” ibid.
6. Substituted by S.O. 1229(E) dated 31.03.2020 for “State”.

Section 19.Revocation of detention orders.

(1) Without prejudice to the provisions of section 21 of the ^*[General Clauses Act, Samvat 1977], a detention order may at any time be revoked or modified by the Government notwithstanding that the order has been made by any officer mentioned in sub-section (2) of section 8.

(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where––

(i) the earlier order of detention or its continuance is not legal on account of any technical defect ; or

(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding that such order of its continuance is not legal on account of any technical defect :

Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded.

* General Clauses Act, 1897.

Section 20.Temporary release of persons detained.

(1) The Government may at any time order that a person detained in pursuance of detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts and may at any time cancel his release.

(2) In directing the release of any person under sub-section (1), the Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.

(3) Any person released under sub-section (1) shall surrender himself at the time and place and to the authority, specified in the order directing his release or cancelling his release as the case may be.

(4) If any person fails without cause to surrender himself in the manner specified in sub-section (3) he shall be punishable with imprisonment for a term which may extend to ¹[two years] or with fine, or with both.

(5) If any person released under sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to the penalty thereof.

¹[(6) The period of release shall not count towards the total period of detention undergone by the person released under this section.]

1. Substituted by Act II of 1988, s.6.

Section 21.Cognizance of offences under this Act.

(1) No Court shall take cognizance of any offence under this Act except on a report in writing made by a public servant.

(2) Notwithstanding anything contained in the Second Schedule to the Code, offences under this Act shall be cognizable and non-bailable.

Section 22. Protection of action taken under this Act.

No suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act.

Section 23.Power to make rules.

The Government may, by notification, make such rules consistent with the provisions of this Act, as may be necessary for carrying out the objects of this Act.

Section 24. Repeal and saving.

(1) The Jammu and Kashmir Public Safety Ordinance, 1977 is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken (including any rule or order made) under the said Ordinance shall, so far as consistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.