S.M. Rizvi, J.
1. On 26th of September, 1984 I have made an order quashing the detention order dated 24th August, 1984 made by the District Magistrate, Srinagar, in exercise of the powers conferred by Section 8 of the Jammu and Kashmir Public Safety Act and announced that the reasons would follow. Here are the reasons.
2. This is a petition Under Section 103 of the Jammu and Kashmir Constitution for the issuance of a writ of Habeas Corpus for the release of Shri Ghulam Nabi Mir S/o. Habib Ullah Mir R/o Gulab Bagh, Ganderbal, who has been detained by an order of detention No. PSA/89/DMS/84 dated 24th August, 1984, passed by the District Magistrate, Srinagar, Under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, on his being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
3. The grounds of detention given by the detaining authority are as follows :-
Shri Gh. Nabi Mir S/o. Habib Ullah Mir R/o Gulab Bagh, Ganderbal is a Zamindar by profession. A firm believer of N.C. (F), he is a staunch worker of N.C. which is headed by the late Chief Minister Sheikh Mohd Abdullah and after the death of Sheikh Mohd Abdullah remained associated with the said N.C. Party headed by Dr. Farooq Abdullah. After the Ex-Chief Minister lost the support of Legislators of his party in the Assembly, the supporters and workers of N.C. (F) changed their ideology and started indulging in subversions/extremism activities for achieving such objectives. The said Gh. Nabi Mir along with other supporters and workers of N.C. (F) started preaching and canvassing the supporters for indulging in violence and other militant activities to overawe the non-muslim community. For long he has been organising and attending meetings of these parties to formulate the strategy to achieve the goal and from time to time acted in a manner prejudicial to maintenance of public order. The following are some of the instances of his prejudicial activities in which the individual had acted from time to time as also in the recent past to achieve his nefarious designs :-
i/ Since N.C. (F) group has been ousted from the power consequently he and his other accomplices Sh. Mohd Ashraf Bhal R/o Gulab Bagh, Gh. Ahmad Sheikh, Ab. Ahad Ganai and Ab. Hamid Bhat residents of Ganderbal belt among others started delivering speeches to public at different places at different times/occasions malignantly and wantonly and gave provocation to the public that their future with India had become now dark because the elected Government of Dr. Farooq Abdullah has been dethroned by the Central Government un-democratically and unconstitutionally and installed upon the people, the Government of their own choice which has not local standing at all. With a view to promote feelings of hatred between classes of citizens of India, he maliciously delivered speeches at various places in various speeches/meetings with other accomplices in the month of July 1984. This sort of provocative speeches stimulated the feelings of the people in general which would have caused a great stir and also caused serious type of riots/arson and communal disharmony amongst the different classes of the people. Given below are some of the instances where the above cited subject acted in a manner prejudicial to the public order as under :-
1. On 20-4-1984 he along with other delivered provocative/malicious speeches in the house of Ab. Ahad Gani R/o Wwkoora Ganderbal with others, where stress was laid on unification of the party believers in subversions for disturbing the public order.
2. On 22-4-1984 again in his own residence where plans for causing public disorder were discussed.
3. On 23-4-1984 at the residence of Gh. Ahmad Sheikh where workers resolved to wage the war against the Central Government by creating law and order problems with a view to disturb public order. Also a plan was made to disturb the function to be held by the present G. M. Shah on 24-4-1984 at Bihama and Watlar Ganderbal etc ; by stone pelting by the die-hards of N.C. (F) group on the workers and supporters of N.C. (K).
4. On 24-4-1984 Sh. G. M. Shah (present CM. of the J & K State) along with his Mrs. Smt. Khalida Shah and workers of N.C. (K) with Sh. Gh. Nabi Kochak etc. were assaulted by the subject and his other accomplices at Bihama and Watlar Ganderbal with deadly/fatal weapons, with the object to do away with their lives. The N.C. (K) workers were pelted/assaulted for which a conspiracy 'had already taken place at Srinagar with Provincial President of N.C. (F) to protest against the foregoing party workers so that the celebration of public meeting/function both at Bihama and Watlar Ganderbal (earlier are not being held at all). The objects were achieved when G.M. Shah, Smt. Khalida Shah and other leaders were fatally assaulted by pelting stones and deadly weapons with a common object of assassinating them.
5. On 30-6-1984 the subject (Gh. Nabi Mir.) along with Mohd Ashraf Bhat, Gh. Ahmad Sheikh, Ab. Ahad Ganai and others wrongfully restrained Sheikh Ab. Jabbar MLA (Kangan) now Hon'ble Minister who on Idd celebration was going towards his home (LAR) in the afternoon and assaulted him with deadly weapons, who earlier in the month of March had withdrawn the support from Ex. C.M. Dr. Farooq Abdullah for withdrawing his support. Sh. Sheikh Abdul Jabbar was criminally assaulted and wrongfully restrained by the subject and others as to why Sh. Babbar had withdrawn his support from Dr. Farooq Abdullah who had been held responsible for creating chaos and defection within N.C. (F) group.
6. On 4-7-1984 when the announcement of new Government was made, the die-hards of the N.C. (F) belonging to Ganderbal belt mentioned above made provocative speeches where the individual along with his other accomplices disclosed with the aim of uniting all antinational/antisocial elements under one leadership so that the common object of creating public disorder in the State through disruptions/subversions and sabotages will be achieved. He, thus attended different meetings of the party held at the different places to ensure that the unification is materialised as early as possible to give final-shape-to their unscrupulous designs. These meetings were held at the following places and dates.--
(a) On 6-7-1984 he again held a meeting at his own residence at Gulab-Bagh, Ganderbal where he instigated the participants that Central Government is seeking ways and means to convert majority into minority. He also instigated public that I along with Dr. Farooq Abdullah will throw our enemies N.C. (K) and Congress 1 workers out for which we have to sacrifice our lives even and also instigated the people to harass the non-muslims community to show to India the integrity of the Stale muslims.
(b) On 9-7-1984 he held again a meeting at the residence of Mohd Ashraf Bhat R/o Gulab Bagh, Ganderbal in which he instigated public against the State and Central Government and stressed the participants to continue struugle till dismissal of present ruling party i.e. N.C. (K).
As the activities of the above cited individual are highly prejudicial to the maintenance of the public order, therefore, the undersigned is satisfied that the subject merits to be detained as per Section 8 of the J & K Public Safety Act. 1978.
The respondent has filed the counter.
4. I have heard the learned Counsel for the parties and have gone through the file.
5. The main contention of the learned Counsel for the petitioner is that the order of the District Magistrate, Srinagar, suffers from non-application of mind in asmuch as the date on which he passed the impugned order of detention dated 24th of August, 1984. the detenu was long before arrested and locked up in Jail. In the proceedings taken against him Under Section 107/151 of the Criminal Procedure Code, and, therefore, there was no present apprehension that the detenu if not detained was likely to act in any manner prejudicial to public order. The District Magistrate, Srinagar, passed the impugned order of detent.ion on being satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the public order it was necessary to detain, him. The order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail. If the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail the order ex facie would have shown that even though the detenu was in Jail with a view to preventing him from acting in any manner prejudicial to the public order it was necessary to detain him. The detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in Jail and yet on the material placed before him he was satisfied that the detention order ought to be made. The detaining authority no doubt has in his counter-affidavit admitted that the detenu was arrested and remanded to Judicial custody by the executive Magistrate before he was detained under Public Safety Act. He has however further stated therein that the text of the grounds would go to show that it was necessary to detain the petitioner to prevent him from acting in any manner prejudicial to the security of the State. He has also stated that he had applied his mind to the grounds and was satisfied that it was necessary to detain the petitioner and that he had passed the order keeping in view the fact that the petitioner was already in custody. The assertion of the District Magistrate in his counter-affidavit regarding his awareness of the detention of the petitioner in jail before passing the detention order in question is not sufficient to validate the same in the eye of law. He should have shown the said awareness in the grounds of detention itself and then come to a conclusion that the detention of the petitioner was necessary to prevent him from acting in any manner prejudicial to the public order. This would show that the District Magistrate, Srinagar, has not applied his mind to the fact that the detenu was already in jail and his detention under Public Safety Act was necessary to prevent him from acting in any manner prejudicial to the public order. In Vijay Kumar v. State of J. & K. (1982) 2 SC 43 : 1982 Cri LJ 988 it has been held that the detention order must have clear mention of this fact and indicate that such detention was not sufficient to prevent the detenu from the prejudicial activities covered by the Preventive Detention Law.
6. So far as the other grounds of detention as shown in the order in question are concerned, they are all vague mostly relate to the period before the arrest of the detenu in the proceeding Under Section 107/151 of the Criminal Procedure Code. Had these facts weighed with the District Magistrate, he could have detained him under Public Safety Act on that very day rather than Under Section 107/151 of the Criminal Procedure Code.
7. The above reasons promoted me to quash and set aside the detention order.