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Ghulam Qadir Hawabaz Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1955CriLJ1597
AppellantGhulam Qadir Hawabaz
RespondentState
Cases ReferredShibhan Lai Saksena v. State of Uttar Pradesh
Excerpt:
- .....designs' has been used merely in a pickwickian sense no details nor any description of the detenu 'nefarious designs' have been given. it is possible that what may be 'nefarious designs' in the eyes of the detaining authority, may be quite innocent in the opinion of others. what was needed was that the specific activities of the detenu should have been detailed so as to provide a clue to understand as to what really was meant by the detaining authority by tin's phrase. besides that, in most of the grounds supplied, no date or time has been mentioned as to when those 'nefarious designs' were being carried out by him.in 'prem dutta v, supdt. central prison' air 1954 all 315 (a) in none of the grounds had any date or time been mentioned. in one of the grounds in which it was alleged.....
Judgment:

Kilam J.

1. This is an application for securing a writ of Habeas Corpus submitted on behalf of Ghulam Qadir Hawabaz who has been ordered to be detained by the District Magistrate, Baramulla 'with a view to preventing him from acting in a manner prejudicial to the maintenance of public order.' This order was made on 22-4-1955. Under Section 8 of the Preventive Detention Act, grounds have been supplied to the detenu. The application came up for hearing before one of us (Kilam J.) who in view of the importance of the law-point involved in it, referred to a Full Bench.

2. The detenu's learned Counsel, taking his stand upon some rulings of the Supreme Court, has advanced elaborate arguments mainly touching the point that the grounds were vague which in the submission of the learned Counsel was sufficient to vitiate the detention order. We have gone through the grounds. It is a huge document. But: a mere perusal of this document would show that some of the grounds are very vague in framing which the detaining authority does not seem to have applied his mind properly. For instance in most of tile grounds reference lias been made to the 'nefarious designs of the detenu.'

But it appears that the phrase ' nefarious designs' has been used merely in a Pickwickian sense No details nor any description of the detenu 'nefarious designs' have been given. It is possible that what may be 'nefarious designs' in the eyes of the detaining authority, may be quite innocent in the opinion of others. What was needed was that the specific activities of the detenu should have been detailed so as to provide a clue to understand as to what really was meant by the detaining authority by tin's phrase. Besides that, in most of the grounds supplied, no date or time has been mentioned as to when those 'nefarious designs' were being carried out by him.

In 'Prem Dutta v, Supdt. Central Prison' AIR 1954 All 315 (A) in none of the grounds had any date or time been mentioned. In one of the grounds in which it was alleged that the petitioner organized two illegal strikes, there was no mention of the dates and no particulars were given as to the place or places where the alleged strikes were said to have been caused by the detenu. On these facts it was held 'that those grounds were in terms which were too vague to enable the petitioner to make an adequate representation.' The detention order was set aside.

3. In ground 3(c) the detenu has been accused of having met some 'Mr. Beg and Kara respectively to get instructions from them.' Now everybody knows that there are many Begs in the city of Srinagar and also many Karas. The detenu can very easily say that as long as it is not specifically given as to which Beg or Kara is meant, he cannot make any effective representation to the Government. In the same ground it is said that 'the detenu continued to receive instructions and messages from the War Council Srinagar through persons whom it is not expedient to name.' Further on, it is stated 'you (detenu) sought the collaboration of the P. S. P. or any other anti-Government elements of Baramulla in your nefarious designs.' Now no date or time of the reception of these instructions and messages from the War Council has been given. And then the mind of the person who has given the grounds is so hazy that he, is not sure as to whether the detenu sought the collaboration of the P. S. P. or any other anti-Government elements. The word 'or' which is used in this sentence is significant, land is suggestive of this inference.

4. One of the grounds is that the detenu had imported 'Sach' a paper issued from Jammu which contained the speeches of Mr, Beg delivered in the Assembly at Jammu. The height of absurdity is reached in ground No. 3(c) in which the detenu is accused of trying to hamper (perhaps the word is tamper) with the loyalty of certain National Conference workers. We wonder if it is a 'nefarious design' to convert certain National workers to some other political view. Here also no time or date is given as to when and where this 'tampering' started.

5. In 'Dr. Ramkrishen Bhardwaj v. State of Delhi' : 1953CriLJ1241 it has been held:

A petitioner has the right, 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. This constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under CI. (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 esta- blished by law within the meaning of Article 21 and he is, therefore, entitled to be released.'

Again in AIR 1954 All 315 (A) it has been laid down:

Where good grounds for detention have been mixed up with vague, indefinite and bad grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21 as the Constitutional requirement with respect to each of the ground communicated to the person detained, subject to a claim of a privilege under Clause (6) of Article 22 is not satisfied.

6. It would serve no useful purpose by discussing all the grounds that have been supplied to the detenu. The grounds referred to above are sufficient to establish their vague and indefinite character, and following the dictum laid down in : 1953CriLJ1241 die petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21, and the petitioner is, therefore, entitled to be released.

7. Now some of the grounds discussed above do not show any relevancy to the object which the Legislature has in view, namely, the prevention of objects prejudicial to the maintenance of law and order. We find that an attempt to tamper with the loyalty of certain National Conference workers is totally irrelevant to the object before the detaining authority. In a democracy it is the inherent right of a citizen; to try to convert the public or a portion thereof to his own view-point by peaceful persuasions, preachings and propaganda. Similarly the mere sending for a paper which contains the speeches of a member delivered in. the Assembly and hansarded there, would certainly be irrelevant to the object in view. As long as paper 'sach' is not banned, everybody has a right to read it.

According to 'Shibhan Lai Saksena v. State of Uttar Pradesh' : [1954]1SCR418 in such cases introduction of irrelevant matters would vitiate. the detention order as a whole, though there may be only a few grounds that wore irrelevant or illusory. The seeking of collaboration of the P. S. P. also would be quite irrelevant. The P, S. P. has a recognized position in the Union Parliament and as long as the P. S. P. is not declared as an illegal body in the State, mere collaboration with it would not lead to a presumption that the collaboration is for disturbance of public order. The view of law enunciated above has been taken by the Full Bench of this Court in a number of judgments. Even the Ag. Advocate General did not support the present detention order,

8. For the reasons that have just been recorded by us, we find that the detention of Ghulam Qadir Hawabaz is both improper and illegal. We accept this petition, and order that Ghulam Qadir Hawabaz should forthwith be released from custody unless required in some other case.

Wazir C.J.

9. I agree.

Shabmiri, J.

10. I concur.


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