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Abdul Rashid Shab Vs. the State of J. and K. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1971CriLJ563
AppellantAbdul Rashid Shab
RespondentThe State of J. and K. and anr.
Cases ReferredIn Basanta Chandra Ghose v. Emperor A.I.R.
Excerpt:
- .....of the affidavit by the secretary to government, home department, is a proof positive of the mala fides of the authorities rendering the petitioner's dstention improper and invalid.3. mr. raina appearing on behalf of the state while not denying that there has been a slight carelessness in drawing up the order trader section 8 read with section 13.a of the act and the affidavit of the secretary to government, home department, has submitted that the mistakes pointed out by me beg did not show any mala fides on the part of the authorities nor did they affect the validity of the petitioner's detention. he has further submitted that it was apparent from the compliance report made by mr. a. n. watali, deputy superintendent of police, and the affidavit filed by him that the aforesaid.....
Judgment:
ORDER

Jaswant Singh, J.

1. This is a petition Under Section 491, Criminal Procedure Code by Shri Abdul Rashid Shah, a Vakil of this Court, challenging his arrest and detention effected on the basis of order No. PDA/DMS/22/70 dated 25-4-170 made by the District Magistrate, Srinagar, for reasons of the security of the State in exercise of the power conferred on him Under Section 3 (2) of the Jammu and Kashmir Preventive Detention Act, 1964, (hereinafter referred to as 'the Act').

2. Mr. Beg appearing on behalf of the petitioner has urged only two points before me. He has in the first place submitted that the detention of the petitioner is invalid as the aforesaid order of detention was not shown or read over to him at the time of his arrest as directed by the District Magistrate. He has next submitted that whereas according to the endorsement made by Shri A. M. Wattali, Deputy Superintendent of police, South Zone, Srinagar, to whom the said order of detention was forwarded by the District Magistrate, Srinagar, for execution and the averment made in para 2 of his affidavit by the Secretary to Government, Home Department, the petitioner was arrested on 26.4-1970 pursuant to the said order of detention, the District Magistrate had in the first para of his order No. 8T/22/70 dated 25.4.1970 passed Under Section 8 read with B. 13.A of the Act stated that the petitioner ''has been detained' in pursuance of order No. PDA/DMS/22/70 dated 25-4.1970 which was factually incorrect. Mr. Beg has further submitted that even the Secretary to Government, Home Department, has while drafting his reply affidavit acted without due care and caution as is apparent from para 5 of the first part of the affidavit setting forth preliminary objections to the petition which runs as under ;

The Government after considering the said order of detention along with the grounds and the material placed before them on which the order of detention was made approved the order of detention vide No. ISD-345 of 1970 dated 18-5-1970. The said order was also communicated to the deteau who in token of his having been informed about it made the following endorsement on the said order:

Janab a-aali, aaj maurkha 18-5-1870 nazar band mazkoor ko hukam haiza ee mutla kia gia.

Sd/- Gh. Rassool......18.5-1970.

The learned Counsel has vehemently contended that the recital in the order passed by the detaining authority Under Section 8 read with Section 13-A of the Act coupled with the careless drafting of the affidavit by the Secretary to Government, Home Department, is a proof positive of the mala fides of the authorities rendering the petitioner's dstention improper and invalid.

3. Mr. Raina appearing on behalf of the State while not denying that there has been a slight carelessness in drawing up the order trader Section 8 read with Section 13.A of the Act and the affidavit of the Secretary to Government, Home Department, has submitted that the mistakes pointed out by Me Beg did not show any mala fides on the part of the authorities nor did they affect the validity of the petitioner's detention. He has further submitted that it was apparent from the compliance report made by Mr. A. N. Watali, Deputy Superintendent of Police, and the affidavit filed by him that the aforesaid order of detention was duly read out to the petitioner at the time of his arrest as directed by the District Magistrate. Be has also submitted that the authorities had acted bona fide in the interests of the security of the State and the detention of the petitioner was perfectly valid.

4. I have given my earnest consideration to the submissions made by the learned Counsel for the parties.

5. Although the order relating to the nondisclosure of the grounds of detention passed Under Section 8 read with Section 13-A of the Act is not happily worded and is grammatically incorrect and there has been a regrettable want of care in drawing up tbe affidavit by the Home Secretary, and most of the carping criticism levelled by Mr. Beg could have been avoided if the expression 'has been ordered to be detained' instead of the expression 'has been detained' occurring in the third line of order No. ST/22/ 70 dated 25-4-1970 had been used and if the following phraseology had been employed in para 5 of the Home Secretary's affidavit setting out the preliminary objections :

The said order (i.e. Govt. Order No. ISD-345 of 1970 dated 18.5-1970 approving tbe order of detention) was also communicated to the detenu as would appear from the following endorsement made on the said order ;

[Original in Urdu omitted]

Sd/. Gh. Rasool

18-5.70.

I am of the opinion that the above errors are not sufficient to constitute mala fides on the part of the authorities and to render the detention of the petitioner invalid. It is now well settled that satisfaction of the detaining authority is not justiciable. It is equally well settled that a plea of mala fides is easy to make but very difficult to substantiate and that the onus lies on the petitioner who sets up mala fides to prove the same. Reference in this connection may be made to the decisions re. ported in (1067) 8 Guj L E 265 and A.I.R. 1964 S C 962.

6. While looking up the cage law bearing on the matter in question I have also come across a case entitled Greene v. Secretary of State for Home Affairs (1941) 3 All E R 388 where Viscount Maugham while agreeing with the observations made by Goddard, L. J. of the Court of Appeal in R. v. Home Secretary, Ex parte Greene (1941) 3 All E R 104 said that whore the return (or the affidavit showing cause) exhibits an order of commitment regular on the face of it, it is a complete answer and it must be taken until the contrary is proved to have been properly made.

7. In Basanta Chandra Ghose v. Emperor A.I.R. 1945 F G 18, Spens C. J. while quoting with approval the aforesaid observations of Viscount Maugham said :

The mere fact that the detenue challenges the factum or the bona fides of the order of the fact that the officers of Government must naturally be in possession of information on the subject cannot be said to be 'proof to the contrary' so as to make it incumbent on the Government to adduce evidence in support of the order. In 1942 A C 284, Goddard L. J. (as he then was) referred to the possible ignorance of the detenu as to the reasons for his internment and said that that would not shift the burden of proof, because 'it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe' that it was necessary to detain the person.

8. In the present case the burden referred to above has not been discharged by the petitioner. No material has been placed on his behalf before me which may lead me to the conclusion that the order of detention was made for an ulterior purpose or a purpose other than the one stated in the detention order. It is also significant that although the petitioner admittedly made out a copy in his own hand of the aforesaid order regarding non-disclosure of the grounds of detention he has not in his petition made any grievance of the same. Thus though the mistakes appearing in order No. ST/22/70 dated 25-4-1970 passed Under Section 8 read with Section 13-A of the Act and in para 5 of the affidavit of the Home Secretary, exhibit as already stated, a certain amount of want of care and attention yet they are not sufficient to establish mala Fides. The aforesaid order of detention is proved to have been properly made and served on the petitioner at the time of hia arrest and the other legal steps which -were necessary to bring about hia detention also appear to have been duly taken. In the circumstances I cannot hold the detention of the petitioner to be improper or invalid.

9. For the reasons given above, I see no merit in this petition which is hereby dismissed.


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