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Jamil Shaheen and anr. Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1985CriLJ1682
AppellantJamil Shaheen and anr.
RespondentState of Jammu and Kashmir and anr.
Cases ReferredGhulam Hassan Kanroo v. State of
Excerpt:
- .....abdul rashid bhat r/o mohalla shaksaz, anantnag detained vide order no. 1591/st dt. 24-2-1985 by district magistrate, anantnag under the provisions of jammu and kashmir public safety act, 1978 as stood amended (hereinafter called the act,) (2) in habeas corpus petition no. 157 of 1985, the detention of shoukat ahmad baba alias shoga baba, r/o dangerpora, anantnag detained vide order no. 1605/st dt. 24-2-1985 passed under the provisions of the act by district magistrate, anantnag, and (3) in habeas corpus petition no. 158 of 1985 challenged the detention of shabir ahmad shah s/o mohd. abdullah shah r/o reshi barar, anantnag detained vide order no. 1619/st dt. 24-2-1985 under the act by district magistrate, anantnag.2. points of attack and the facts alleged in the above said three.....
Judgment:
ORDER

Mazhar Ali Shah, J.

1. By the Habeas Corpus Petitions above referred, the petitioner Jamil Shaheen, who is common to all the three writ petitions has challenged simultaneously by (1). Habeas Corpus Petition No. 156 of 1985. the detention of Bashir Ahmad Bhat S/o Abdul Rashid Bhat R/o Mohalla Shaksaz, Anantnag detained vide Order No. 1591/ST dt. 24-2-1985 by District Magistrate, Anantnag under the provisions of Jammu and Kashmir Public Safety Act, 1978 as stood amended (hereinafter called the Act,) (2) in Habeas Corpus Petition No. 157 of 1985, the detention of Shoukat Ahmad Baba alias Shoga Baba, R/o Dangerpora, Anantnag detained vide Order No. 1605/ST dt. 24-2-1985 passed under the provisions of the Act by District Magistrate, Anantnag, and (3) in Habeas Corpus petition No. 158 of 1985 challenged the detention of Shabir Ahmad Shah S/o Mohd. Abdullah Shah R/o Reshi Barar, Anantnag detained vide Order No. 1619/ST dt. 24-2-1985 under the Act by District Magistrate, Anantnag.

2. Points of attack and the facts alleged in the above said three petitions being identical, they are heard together and are being disposed of by a Single Judgment. It has been alleged that the detenus, whose names, are quoted above were arrested by Police Station, Anantnag under the orders passed under the Act on Feb. 24,1985. It is further pointed out that the detenus were already in police custody since 7-2-1985, whereas the order of detention impugned in the present petitions was passed on Feb. 24,1985 and they were served on Feb. 26, 1985 with the communication from Respondent No. 2 the District Magistrate, Anantnag along with the grounds and were informed that they have been detained vide the orders quoted above respectively. In the petitions Amendment of Section 10-A issued vide Ordinance No. 11 of the 1984, which later on became the Amendment Act of 1985 was also challenged, but the same was not pressed before the Division Bench and hence the petitions were directed to be laid for hearing before the Single Bench of this Court. Despite opportunities given to the respondents right from 8-5-1985, the respondents have not filed the counter affidavits nor any record was produced at the time of hearing.

3. Learned Counsel for the petitioner at the very out set submitted that the orders impugned does not show the application of mind by the District Magistrate mainly on two grounds, firstly that the detenus were in detention at the time when the order was passed under the Act on April 24. 1985, secondly, earlier to the impugned orders all the detenus were also detained earlier vide order issued under the Act on May 22, 1984. The district Magistrate has not mentioned his awareness either in the order impugned or in the grounds of detention served on the detenus that the detenus were already under detention at the time when the orders were passed or that the earlier orders which stood revoked were within his knowledge, thus relying on the authority of their Lordships of the Supreme Court reported in : 1985CriLJ796 Avtar Singh v. State of Jammu and Kashmir the order of detention is vitiated and liable to be quashed. On the merits also, learned Counsel submits that the grounds on which the detenus are detained are vague and some are even stale, some of which are also the repetition of the earlier order, which stood revoked, it is also submitted that the material on the basis of which the learned District Magistrate based his subjective satisfaction was not supplied to the detenus.

4 . Heard learned Counsel for the respective parties. It has not been disputed that after the enforcement of the amendment by incorporating Section 10-A in the Act, the grounds are severable and if one of the grounds is proved to the satisfaction of the district Magistrate, the subjective satisfaction cannot be called in question. The provisions of Section 10A of the Act are quoted herewith for convenience:

10-A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under Section 8 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly -

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -

(i) vague,

(ii) non existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or office making such order would have been satisfied as provided in Section 8 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.' The Legislature in its wisdom by incorporating the above said provision thought it fit that on a mere technicalities an order of detention should not be invalidated, the purpose of which is purely preventive to prevent the detenu from acting in any manner prejudicial to the public order or security of the State as defined in Section 8 Sub-section (3) of the Act. It is no doubt true that the Courts are always zealous to safeguard the liberty of the Citizen, which is a valuable right and which should not easily be taken away except under the strict compliance of the provisions made for the preventive detention. It is also equally true that a liberty should not be misused by evading the duties imposed on a Citizen to maintain public order and any Act which is prejudicial to the security of the State or maintenance of public order is liable to be dealt with by the authorities held responsible for the maintenance of law and order and also the public order which duty shall be performed by the District Magistrates with due care and caution. Once it is found that the subjective satisfaction arrived at by the Distt. Magistrate is based on cogent reasons, Courts are reluctant to disturb the subjective satisfaction of the District Magistrate.

5 . On going through the grounds of detention in all the three petitions about the activities of the detenus quoted separately above on the basis of which subsequent orders for detention has been passed under the Act, it transpires that the grounds which form part of the earlier order were related to the events upto 13-10-1983; whereas the grounds taken into account for the detention of the detenus are subsequent to the grounds which from the basis of the earlier order excepting two grounds of 19-5-1983 and 13-10-1983, which in accordance with the provisions of Section 10-A are severable and are not taken into account at present the subsequent grounds after the revocation of the earlier order starts from 10-8-1984 in Habeas Corpus Petn. No. 1,56 of 1985, and from 2-1-1984 in Petn. No. 157 of 1985 and in Petn. No. 158 of 1985 starts from 2-1-1984 and none of the grounds of 1983 are repeated with respect to the detenu in this petition. In petn. No. 156 of 1985 grounds enumerated are nine starting from 19-5-1983 to 9-2-1985. Out of the grounds isolating the grounds not necessary to judge the subjective satisfaction of the District Magistrate in view of the amended provision, I confine my findings to grounds 5 and 8 which are enumerated as under:

(5) On 17-11-84 one more joint 'meeting of the works of Peoples League, Mahazi Azadi and Jamat-ul-tulba under your chairmanship was held at the office of Jamait-ul-tulba at Kadipora, Anantnag. You delivered a speech on this occasion and said that the leaders and workers of the three organisation had resolved to fight against the constitution. You asked the participants that they should hoist Pakistani flags at all religious places. You again challenged the accession of the State with the Indian Union and further said that the late Sheikh Mohd. Abdullah or any other Kashmir leader had no right to acceed to India against the wishes of the people of the State.

(8) On 25-1-1985 another joint meeting of the members of Mahazi Azadi,, Jamait-ul-tulba and People League was held in the office of Jamait-ul-tulba at Kadipora, Anantnag. You presided over the meeting and delivered a speech. On this occasion you instigated the participants that they should hoist Pakistani flags in the Sports Stadium Anantnag where Republic Day celebrations were to be held on 26th of Jan. 1985 so that these get disturbed. On this occasion also you challenged the accession of the State of J & K with the Indian Union and said that you and your organisation had decided to launch agitation, against the Indian Govt. and the Govt. of J & K.

In Habeas Corpus Petn. No. 157 of 1985 insolating the other grounds, following two grounds are sufficient for the purpose of present petition:

(4) You did not desist from acting in illegal/anti national activities and on 29-10-84 a meeting of the members of the Peoples League, Mahazi Azadi and Jamat-ul-tulba was held under your chairmanship in the shop of one Gh. Mohd. Khan r/o Mehman Mohalla Anantnag. You delivered a speech on the occasion and challenged the accession of the State of J & K with the Indian Union. You further said that you and the members of your Organisation had resolved to fight like Phelistine Mujahids to that Nizam-i-Mustafa could be established in the State of J & K. You also said that the aim and object of your party was that the State of J & K should become a part of Pakistan.

(5) On 1-12-1984 one more meeting of the members of the Peoples league, Mahazi-Azadi and Jamat-ul-tulba was held in the house of Shabir Ahmad Shah s/o Abdullah Shah r/o Fteshibazar, Anantnag under your presidentship on this occasion also, you delivered a speech, addressing the audience, you said that your party as also the organization of Mahazi-Azadi, Jamait-ul-tulba had never accepted the Indian Constitution. You further said that Indian Government have suppressed the people of J & K who were compelled to lead a life of slaves. You exhorted the audience that they should hoist green Pakistani flags on Govt. buildings and religious places. At the conclusion of the meeting, anti-national slogans like we want Pakistan, Pakistan Zindabad, Indian dogs go back etc; were raised.

In Habeas Corpus Petn. No. 158 of 1985, Grounds Nos. 4 and 6 are sufficient for the present consideration:

(4) On 10-11-84 a secret meeting of the members of your party, Mahazi Azadi and Jamait-ul-tulba was held in the shop of Iqbal Medical store, Anantnag which was presided over by you. Speaking on the occasion, you said that your party had never acceded the accession of the State of J & K with the Indian Union and the primary aim of your party was that Pakistan should rule in the State of J & K. You impressed upon the participants that they should continue their struggle against the Indian rulers. You said that late Maqbool Bhat had sacrified his life for the independence of Kashmir and the members of the three organisations should fight with the same spirit of dedication.

(6) On 27-12-.84 another joint meeting of the members of Peoples, league, Mahqzi Azadi and Jamait-ul-tulba was held in the premises of Govt. Mr. Secondary School for boys at Anantnag. You presided over the meeting. Addressing the participants, you impressed upon them that they should persuade the college as also the students of schools to join their organisations enlist their support and fight untidily against the Indians. On this occasion also you challenged the accession of the State of J & K with the Indian Union and said that you had resolved to annex the State with Pakistan. You also disclosed that your party men were doing to cause explosions with intent to create scare in the minds of the members of minority community. Highly objectionable slogans like Pakistan Zindabad, we want Pakistan, Indian dogs go back etc. were raised in the meeting.

6 . A bare reading of the above grounds in all the above three petitions will show that the activities of the detenus are such on the basis of which the detention of the detenus is justified for the reasons stated by the District Magistrate disclosing his satisfaction by the preamble and the concluding paras of the grounds. It has been found by the District Magistrate that the activities of the detenus are highly prejudicial to the maintenance of public order, for which their detention under the Public Safety Act has been found imperative. A serious attack has been made by the learned Counsel for the petitioners on the plea that the detenus were arrested by Police Station, Anantnag on 7-2-1985 and in the next breath it is also pointed out that the detenus were served with the grounds of detention on Feb. 26,1985, thus on the relevant date when the order of detention was passed the detenus were already under arrest and in detention for over 16 days at the time of passing of the order of which the awareness has not been shown by the District Magistrate. Learned Government Advocate in reply pointed out that the allegations about the arrest of detenus on 7-2-1985 is quite astray allegation of which no details are given nor the source of knowledge has been pointed out by the petitioner in the affidavits filed in support of the petitions. On perusal of the affidavit filed in support of the petitions, I find that the affidavits are stereo type and the column in Para 2 of the affidavit where it is mentioned that the contents of the writ petition from Para 1 to (sic) is thereafter blank. It is a fundamental departure from the principles of law for verification of contents in an affidavit, In the absence of any specification or even any record showing that the detenus were already in detention at the time when the District Magistrate passed the impugned order, I do not find any substance in the contention raised by the petitioner specially when the detenus were already at large after the revocation of the earlier order. It is now well established that the provisions of the Act are preventive in nature and they are meant to prevent the activities of a person, which are found by the District Magistrate prejudicial to the maintenance of the public order specially when the action of the detenus are such which cause communal disharmony as well as promote, propagate or create feelings of enmity or hatred on the grounds of religion, race, caste, community or region. They squarely fall within the ambit of the definition enumerated in Sub-section (3) of Section 8 Clause (b):

acting in any manner prejudicial to the maintenance of public order.

Cl. (i) of this sub-section is also quoted as under:

(i) promoting, propagating, or attempting to create feelings of enmity or hatred or disharmony on grounds of religion, race, caste, community, or region.

7 . Viewed thus I find that the activities of the detenus when tested on the above quoted definition by reading the grounds quoted above, the subjective satisfaction of the District Magistrate is based on cogent reasons of which the proper opportunity to make representation was also given to the detenus, which also they fail to avail. While examining the order passed by the District Magistrate under the provisions of Public Safety, Act, the Court is not sitting as a Court of Appeal and the order of the District Magistrate cannot be examined by the High Court of Appeal. It is to be seen whether the procedure prescribed by law is followed by the detaining authority, once it is found that there is no lapse on the part of the detaining authority to follow the procedure prescribed the subjective satisfaction of the District Magistrate cannot be disturbed in a petition and in such circumstances the detention of the detenus cannot be said to be illegal or unconstitutional. Learned Counsel for the petitioner in support of his contentions placed his reliance on : [1980]1SCR258 Mohd. Yousuf Rather v. State of Jammu and Kashmir 1985 Srinagar LJ 19 : 1985 Cri LJ 406 Ghulam Hassan Kanroo v. State of J & K and 1985 Srinagar LJ 77 : 1985 Cri LJ 1344. On the examining the contents of the present writ petitions in the light of the ratio of the above quoted decision, I find that the facts are distinguishable. An authoritative pronouncement can very well be relied on in so far as the legal proposition is concerned but the facts of each case cannot be equated with other cases. In my opinion in the facts and circumstances of the present cases, the detention of the detenus cannot be quashed, which has been held as legal and in accordance with law. The subjective satisfaction of the District Magistrate in the light of provisions of Section 10-A cannot be quashed in the circumstances enumerated above.

8. For the reasons stated herein above, all the three petitions have no merit, the petitions are therefore, dismissed.


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