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Nissar Ahmad Teli and Etc. Vs. State of J. and K. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1986CriLJ257
AppellantNissar Ahmad Teli and Etc.
RespondentState of J. and K. and anr.
Cases ReferredMasood Alam v. Union of India. On
Excerpt:
- .....made. the counter-affidavits filed in all the three petitions concentrate only on the subsequent orders passed referred to above respectively without making any reference of the orders earlier passed against the same detenus, which are subject-matter of the writ petition. it is also not mentioned in the affidavits of, the district magistrate that he was aware of the previous orders under which the detenus were already in detention at the time when the subsequent orders were passed. there is no mention worth the name about the allegations made in the writ petition controverting the averment: all the allegations are..simply denied by saying:the contentions raised by the petitioner in the petition from paras 4 to 5 and are, therefore, totally misconceived, untenable and without any.....
Judgment:
ORDER

Mazhar Ali Shah, J.

1. All the above quoted three petitions arise out of the order of detention passed by District Magistrate, Anantnag under Section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called the Act). In all the three petitions identical questions of fact and law have been raised, thus all the three petition' are heard and disposed of together. In the abovesaid three petitions respectively, following are the detenus:

(1) Abdullah Teli s/o Qadir Teli r/o Akhal Tehsil Kulgam, detained vide Order No. 1907-ST/85 dated 18-3-1985. Subsequent to the said order of detention, another order of detention on the similar grounds has been passed by District Magistrate against the detenu under Section 8 of the Act read with Clause (2) of the Ordinance No. 11 of 1984 vide Order No. 76/ST/85 dated 4-4-1985, which has been brought on record vide application filed on 31-5-1985 and is a part of the present petition.

(ii) The detenu Gani Parray s/o Ramzan Parray r/o Khulshan Akhal Tehsil Kulgam has been detained under the provisions of the Act by District Magistrate, Anantnag vide Order No. 1289/ST dated 21-11-1984. Subsequent to the said order of detention, another order of detention has been passed vide No. 26/ST/85 dated 4-5-1985 under Section 8 of the Act read with Clause (2) of the Ordinance No. 11 of 1984 on the grounds annexed with the order against the detenu, which has been brought on record by an application dated 31-5-1985.

(iii) The detenu Mohiuddin Teli s/o Moma Teli r/o Akhal Tehsil Kulgam has been detained by District Magistrate, Anantnag under the provisions of the Act vide Order No. 1276-ST dated 22-11-1984. Subsequent to the said order the District Magistrate passed another order against the detenu vide No. 59/ST/85 dated 4-4-1985 under Section 8 of the Act read with Clause (2) of the Ordinance No. 11 of 1984 on the grounds annexed with the order of detention, which has been brought on record by an application dated 31-5-1985.

2. In all the three abovesaid petitions, District Magistrate, Anantnag has filed the counter-affidavit without filing any annexures with his affidavits, on which a reference is made. The counter-affidavits filed in all the three petitions concentrate only on the subsequent orders passed referred to above respectively without making any reference of the orders earlier passed against the same detenus, which are subject-matter of the writ petition. It is also not mentioned in the affidavits of, the District Magistrate that he was aware of the previous orders under which the detenus were already in detention at the time when the subsequent orders were passed. There is no mention worth the name about the allegations made in the writ petition controverting the averment: all the allegations are..simply denied by saying:

The contentions raised by the petitioner in the petition from paras 4 to 5 and are, therefore, totally misconceived, untenable and without any substance. The contentions/averments made by the petitioner which run contrary what has been stated by him are vehemently denied.

I am not inclined to accept the contention of the learned Counsel for the respondents that there was no necessity for controverting the facts relating to the previous orders passed.

3. Heard learned Counsel for the respective parties on the merits of the petitions. No record has been produced for perusal of the court by the learned Government Advocate. He states that the same could not be procured despite his efforts. To find out the fact whether the District Magistrate was aware of the detention of the detenus while passing the subsequent order, it was necessary for the respondents to produce the record or to explain in the affidavit in the absence of which it is difficult to hold that there was a proper application of mind. Learned Counsel for the petitioners relying on an authoritative pronouncement of their Lordships of the Supreme Court reported in : 1985CriLJ796 Avtar Singh v. State of Jammu and Kashmir submits that the order of detention is liable to be quashed simply on the ground that from the subsequent order or even from the affidavit of the District Magistrate it is not clear that the detaining authority was aware of the fact that the detenus were already in detention for some months, thus the authority : 1985CriLJ796 (supra) is applicable with full force in the present cases on the basis of which alone the orders of detention are liable to be quashed. Learned Counsel for the respondents on being asked even could not point out that the previous order passed against the detenus were revoked and at the time when the subsequent order has been passed they were free at large or that the District Magistrate found it necessary to continue the detention of the detenus for the reasons best known to him, which are not disclosed by the affidavits. In order to support his contention on the plea that on the same and similar grounds the detention order may be passed subsequently and the same shall not be liable to be quashed on the ground of vagueness of the grounds, he refers to the larger bench authority of their Lordships of the Supreme Court reported in : [1952]1SCR756 Ujagar Singh v. State of Punjab and : 1973CriLJ627 Masood Alam v. Union of India. On going through the authorities, I find that the authorities are distinguishable. It is true that a subsequent order of detention mentioning same grounds as in prior order of detention of detenus who all were in Jail, subsequent order cannot be said to be mala fide, but the fact remains as held by their Lordships in : [1952]1SCR756 (supra):

If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no mala fides can be attributed to the authority from this fact alone.

In the authority cited : 1973CriLJ627 (supra), it is further held by their Lordships of the Supreme Court with reference to Section 14 of the Maintenance of Internal Security Act, 1971:

The principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that the appropriate Government can revoke or modify the detention order at any earlier time: Section 13. It is to effectuate this restriction on the maximum period and to ensure that it is not rendered nugatory or ineffective by resorting to the camouflage of making a fresh order operative soon after the expiry of the period of detention.

From the ratio of the abovesaid pronouncements, I am of the opinion that the contention of the learned Counsel for the respondents has no legs to stand on in order to support the subsequent order of detention, it is imperative for the District Magistrate to show that he was aware of the earlier detention and that after considering the circumstances he found it necessary to continue the detention of the detenus, it is not possible to uphold the detention. Relying on the authoritative pronouncements of their Lordships in : 1985CriLJ796 (supra), I find from the reading of the grounds of detention in the present case, it is nowhere indicative that the detaining authority was aware that the detenus were already in detention for some months; nor does it indicate whether the detaining authority considered the question whether further detention of the detenus was necessary in the circumstances. Thus I find force in the contention of the learned Counsel for the petitioners that both the orders referred to above detaining the detenus respectively in all the three cases are liable to be quashed.

4. For the reasons stated hereinabove, both the orders referred to above in the petitions respectively detaining the detenus under the provisions of the Act read with Ordinance are hereby quashed. It is directed that all the three detenus referred to in the petitions respectively be released forthwith and be set at liberty if not wanted in any other cases.


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