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Abdul Ghani Goni Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1955CriLJ1598
AppellantAbdul Ghani Goni
RespondentState
Cases ReferredRam Krishan Bhardwaj v. State of Delhi
Excerpt:
- .....of misrepresentations he had made. no particulars were furnished in regard to these matters in the grounds.ground no. 3 deals with the programme which the detenu was chalking out in regard to the observance of 9-8-1954 as martyrs day no. 2. no particulars in regard to this programme are given in the grounds. in ground no. 4 reference is made to the fact that the detenu contacted with persons of subversive character and convened meetings on definite dates. it is not stated who were the persons whom the detenu met and what was discussed in the meetings held on different dates.ground no. 5 is the same as ground no. 4 and in ground no. 6 it is stated that the detenu established contacts with enemy across the border. no details are furnished in regard to the detenu's meeting with any enemy.....
Judgment:

Wazir C.J.

1. This is an application filed Under Section 491, Criminal P. C. by Mr. Abdul Ghani Goni, a member of the Constituent Assembly of Jammu and Kashmir, who was detained Under Section 3 of the Preventive Detention Act by the Additional District Magistrate, Srinagar, praying that his detention being Illegal and improper he may be set at liberty. This application came up for hearing before a single Bench of this Court and as some { important law points were involved it was referred to a larger Bench for disposal.

This application has been heard by the Full Bench and Mr. R. N. Bhalgotra is appearing on behalf of the detenu.

2. It is contended on behalf of the petitioner that the detenu belonged to District Doda and was specially invited to Srinagar to attend Advisory Standing Committee's meeting. While he was about to leave for Jammu on 5-8-1954 and had reserved his seat in the bus he was arrested on 6-8-1954, and was detained in the Central Jail, Srinagar. The grounds which were served on him were absolutely vague and and therefore his detention was illegal and mala fide.

3. We have been taken through the grounds which have been served on the detenu and these are as follows:

1. He who has since August 1953 changed his nationalist outlook to communal ideology with S-the change of the Government, which he has been propagating since then, has since the middle of July 1954, on his arrival and stay at Srinagar at Kashmir Guest House, been organising subversive elements and has intensified his objectionable activities detrimental to public order.

2. He started his subversive activities at Srinagar on his arrival here by organising elements with the object of disturbing communal harmony by dissemination of false rumours and mis-representations. In this connection he contacted and collaborated with Sadar-ud-Din Mujahid, Begum Abdulla and other subversive elements.

3. He has since then embarked upon programme for materialising the observance of 9-8-1054 as martyrs day No. 2 as advocated by Pakis- r tan in her recently published pamphlet with the object of disturbing public peace and tranquility in Kashmir valley by taking out processions, observance of Hartals, raising of objectionable slogans, etc.

4. With the object as set forth above, after his arrival in Sriuagar he contacted with persons of subversive character and convened meetings an I5th, 18th, 19th, 22nd, 27th and 28th of July 1954 at Kashmir Guest House and Chash-mashai, as a result of the active part played by him in that behalf subversive elements got active and propagated his ideology. Consequently the campaign of rousing communal passions of people by post and propaganda was revived.

5. On such meeting on 20-7-1954 at the shop of Ghulam Mustafa Bhat of Maisuma steps for furtherance of his objectives were discussed and finalised.

6. He has been having contacts with the enemy across the border for enlisting its help for accomplishment of his designs. In this connection on 16th Sawan 2011 corresponding to 31-7-1954 Abdul Rahim 2nd A. K. Battalion has been intercepted while coming over to contract him again to negotiate details of such help after his previous contact.

7. On 4-8-1954 he visited Mattan with the object of exploiting the situation where dispute between the Sikhs and Kashmiri Pandits over a piece of land near the shrine was pending. In 'that connection he contacted some Muslims to align themselves with one of the contending parties to create communal disorder.

4. The learned Counsel for the applicant has discussed these grounds one by one and has tried to show that these grounds are vague and indefinite and therefore the petitioner's detention is illegal. He has further drawn our atten- tion to the telegram which was received by the detenu from the Chief Secretary inviting him to come to Srinagar on the 15th of July to attend the meeting.

From the affidavit filed by the petitioner it appears that the petitioner attended the meeting and was paid travelling allowance and daily allowance for the days he attended the meeting in Srinagar. On 5th August he was about to leave for Jammu and on the 6th August he was served with a detention order passed by the Additional District Magistrate and was detained in Central Jail Srinagar.

5. The first question therefore for consideration in this application is whether or not the grounds supplied to the detenu justifying his detention are sufficent and are in compliance with Section 7, Preventive Detention Act, and Article 22(5) of the Constitution of India.

6. Section 7, Preventive Detention Act, reads as under:

When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, & shall afford him the earliest opportunity of making a representation against the order to the Government...

7. Clause 5 of Article 22 of the Constitution of India is in the following terms:

When any person is detained in pursuance of an order made under law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been -made and shall afford him the earliest opportunity of making a representation against the order.

8. The grounds which have been served on the detenu are far too vague to enable the detenu to meet them satisfactorily. They are merely allegations made against the detenu and the bases of these allegations have not been disclosed and it was not possible for the detenu to make any effective representation to the Government in regard to the grounds served on him and that being so the detention, in our opinion, is not justified

In the first ground it is mentioned that the detenu has been organising subversive elements and had, intensified his objectionable activities detrimental to public order.

This is a general allegation and does not say what were the objectionable activities in which the detenu was taking part; where they were organized, when they were organized and what was the effect of those activities. Ground No. 2 is also as vague as it can be.

An allegation is made against the decenu that he was disturbing the communal harmony by disseminating false rumours and misrepresentations. A question can be asked as to what were the false rumours which were spread by the detenu and what kind of misrepresentations he had made. No particulars were furnished in regard to these matters in the grounds.

Ground No. 3 deals with the programme which the detenu was chalking out in regard to the observance of 9-8-1954 as Martyrs day No. 2. No particulars in regard to this programme are given in the grounds. In ground No. 4 reference is made to the fact that the detenu contacted with persons of subversive character and convened meetings on definite dates. It is not stated who were the persons whom the detenu met and what was discussed in the meetings held on different dates.

Ground No. 5 is the same as ground No. 4 and in ground No. 6 it is stated that the detenu established contacts with enemy across the border. No details are furnished in regard to the detenu's meeting with any enemy agent. In grou nd No. 7 it is stated that the detenu went to Mattan with the object of exploiting the situation where dispute between the Sikhs and Kashmiri Pandits over a piece of land near the shrine was pending.

It is not stated as to how the detenu exploited the situation when he visited Mattan on the 4th August. The detenu has completely denied having been to Mattan on the 4th August. He has stated that he went to Aish Mukam and not to Mattan on 4th August.

9. It is the right of the petitioner under Article 22(5) to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation which on being considered may give relief to him. The constitutional requirements must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege undery Clause 6 of Article 22.

Where it has not been done in regard to one of the grounds mentioned in the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21 and he is, therefore, entitled to be released. In a case reported as 'Shibban Lai v. State of U. P.' : [1954]1SCR418 , it was held that

where however the Government itself while confirming the detention in exercise of its powers Under Section 11 admits that one of the two grounds mentioned in the original order is unsubstantial or non-existent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.

In such cases, the position would be the same as is one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.

10. In the case of the petitioner it is not clear as to what were the subversive activities which were being conducted by him on different dates in Srinagar. The allegations made in paras 1 and 2 of the grounds are very sweeping and vague

11. The Assistant Advocate-General has argued that the detenu had made a representation to the Government in respect of the grounds served on him, therefore the grounds could not be considered to be vague. This contention is without any force. The grounds served on the detenu have been discussed in detail and we may say at once that the allegations are not free from vagueness. Nothing is said as to what the detenu was doing to form an organization on communal lines; how he was creating communal hatred in the town and how he was organizing subversive activities.

The detenu could say nothing in regard to these grounds except deny them.. If in the grounds details had been given as to the particular place and the particular day he had made a speech or he had advised some people to take part in subversive activities the detenu would have been in a position to give adequate proof of the fact that he was not present on that particular day or at a particular place where it it. alleged that he made such speeches or took part In subversive activities.

In the present case grounds Nos. 1 and 2 do not give any such details and in this event these grounds cannot be considered to be free from vagueness. In 'Ram Krishan Bhardwaj v. State of Delhi' : 1953CriLJ1241 , the supreme Court had held that preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.

12. In this case the grounds which have been supplied to the detenu are vague, Indefinite and not sufficient to enable him to make an effective representation. We are satisfied that further detention of the petitioner is bad in law and we therefore allow this application and direct that the detenu be set at liberty at once unless required in connection with some other charge.

Kilam, J.

13. I agree.

Shahmiri, J.

14. I agree.


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