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Judgment
S.M. Rizvi, J.—In this writ of habeas corpus the detention order No. PSA/DMS/1/87 dated 4-4-1987 passed by the District Magistrate,
Srinagar, detaining Mohammad Yusuf Shah S/o Ghulam Rasool Shah r/o Soibugh, Budgam Kashmir, u/s 8 of the Jammu and Kashmir Public
Safety Act (hereinafter referred to as ""Act"") has been challenged on many grounds, details whereof are given in the petition.
Firstly, it would be advantageous to reproduce the grounds of detention, as below, for the sake of reference:
OFFICE OF THE DISTRICT MAGISTRATE SRINAGAR
To,
Shri Mohammad Yousuf Shah
s/o Ghulam Rasool Shah,
R/o Soibugh-Badgam Kashmir.
Sub.:- Grounds of detention.
There is a report against you that you and your party of which you are Nazim-e-Allah (shoba Tulba) a youth wing of the Jamati-Islamia) is habitual
to challenge openly the accession of Jammu and Kashmir with Union of India and also engaged to exploit stray incidents for the purpose of
creating serious communal disharmony. In the 'Dargahs and Ijtimaha' managed and controlled by your party under your leadership you are
organizing Muslim students militant force by imparting them necessary training and guidance thereby endangering peaceful atmosphere of the State.
It is further reported that you have decided to collect arms and ammunition for disturbing peace in the State, and send the Muslim Youths of
Kashmir accross the border to receive training for handling of the arms and to create communal disharmony and to prove your party to compel the
minority community to leave the State. The following are some references in this behalf:
On 17-1-1985 in a meeting of your party workers arranged by you at Batmaloo you reiterated your statement that Kashmir question was
unresolved and that the Central Government had occupied the State against the wishes of the people. You also stated in the meeting that your
party had resolved to bring a revolution in the State and annex the same with Pakistan.
In a meeting held at Soura on 27-2-1985 you challenged the accession of State with India and instigated the Muslim Youth to launch an armed
struggle like the people of Afganistan and Pakistan so as to achieve freedom from Hindu dominated India.
On 17-3-1985 in a meeting held by you at Tankipora you stated that Indian Government had promised to settle the Kashmir question through
plebiscite as the state was occupied by India forcibly. It was also announced by you that keeping in view the Muslim Majority in the valley it is their
birth right to accede to Pakistan and establish 'Nizam-i-Mustaffa' in the State.
In another meeting of workers held at Kanganon 9-4-1985 you said that the primary duty of your party was to liberate the State from Hindu
dominated India as the Muslims in India were being killed like dogs and the mosques were used as urinals.
On 11-5-1985 you declared in a meeting organised by you that Muslims of the State have not accepted Constitution of India and that some
leaders for the sake of their personal ends have deceived the people of State. You advised your workers to destroy vital installations of the Central
Goverment so that the centre would realize that it was not possible to purchase the Kashmiries.
In a meeting held at Maisuma on 29-6-1985 you stated that the Central/State Governments had introdced such a system of education in the
state which was taking away the Muslim students from the peth of religion. It was further pointed out by you that your party had decided to hoist
Pakistani flags on religious places and vital installations so that that public disorder is created in the minds of minority community with a view to
compelling them to leave the valley. You also instigated the participants to construct mosques on the land belonging to the Hindu Shrines:
In another meeting organized by you at Badgam on 12-7-1985 you said that the Indian Muslims were unsafe and the leaders of India wanted to
convert the majority of the State into minority. In order to take a revenge you incited your workers to compel the minority community to leave the
Kashmir valley.
On 16-8-1985 you challenged the accession of J. & K. with India in a meeting held at Soura. You further said that the youth should struggle to
end this slavery and sacrifice their lives and property for the sake of establishing an Islamic type of Government in the State:
On 6-9-1985 at Badgam you preached the participants to stand for revolt and 'Jehad' against the Central Government and further said to advise
muslims to attend their party centres where necessary training is being imparted to them for 'Jehad' like the people of Afganistan:
For this unlawful activity you have been detained by this office under the provisions of J.&.K. Public Safety Act, 1978 vide order No.
PSA/DMS/170/85 dated, 21-10-1985 and the same was approved by the Government vide Govt. order No. Home-ISI-500 of 1985 dated 19-
2-1985 for a period of twelvemonths. In spite of this detention, you after the expiry of detention continued to indulge in a manner prejudicial to the
maintenance of Public Order and security of the State. Some of the instance are given below:
On 17-11-1986 you organised a public meeting and rally at Iqball Park and the rally afterwards became violent which created a sensation of
terror in the city of Srinagar. For this a case FIR No. 924/86 u/s 4(2) T& D.A. stands registered at P/S. Shergari.
In the last week of Dec. 1986 your party under your leadership created disturbance in the city of S rinagar by resorting to violence, stone
throwing and also tried to disturb the communal harmony in the valley on an article published in the Daliy 'Wadi KI Aawaz"" Consequent upon this
three cases FIR Nos : 313/86 under Sections 295 Am 153/A (P/S Maisuma) 985/86 u/s 295-A, 153,153 A, 120 E, RPC (Shergari) and 986/86
under Ss; 147, 148, 353, 336, 152 RPC (Shergari) stand registered in Police Station Maisuma and Shergari.
On 24-2-1987 at Lal Chowk you demanded in public Speech that Kashmir question is still unresolved according to United Nations resolutions.
On this a case FIR No. 30/87 u/s 4(2) T & DA (P) A stands registered in P/S Maisuma.
On 4-3-1987 at Iqbal Park Srinagar you again challenged the accession and made statements which were likely to hurt the feelings of minority
community in the State. For this a case FIR No: 123/87 u/s 1(2) T & DA (P) A stands registered in P/S Shergari.
On 8, 9, 10-3-1987 in public meetings at Armwari Zero Bridge, Solina and Ziarat Batmallooyou criticised the role of Governor for dismissal of
many muslim employees, conversion of Babri Mosque and closure of Secretariat mosque. You propagated the creation of MUF as a result of
atrocities on muslims. Your preachings in these meetings were of communal frenzy.
In order to achieve political support your party (Jammai Islami) under your leadership created a Liasion with other like minded communal
groups just to contest State Legislative Assembly elections and for this you and your party were found visiting houses of muslims, forcing them to
swear support on the name of Holy Quran in your favour as the elections were projected by you as plebiscite for future of Kashmir.
The above mentioned facts are indicative of the fact that you are bent upon creating chaos and confusion in the valley by spreading communalism
and developing separatist tendencies and also creating public disorder thereby endangering security of the State and public order. I am therefore
satisfied that your remaining at large will pose a great threat to the maintenance of Public order. Hence you are detained under the provisions of J.
& K. Public Safety Act, 1978 for which orders have accordingly been issued.
Sd/- (G. 0- Pardesi)
District Magistrate
Srinagar.
The order of detention has been assailed inter alia on the following grounds:
(a) That the order of detention has been passed by the respondent No. 2 at a time when the detenu was in police custody. In the grounds of
detention as also in the letter dated 6-4-1987, it is nowhere indicated by the respondent No. 2 that while ordering the detention of thedetenu.he
was conscious of the fact that the detenu was in police custody/in Central Jail Srinagar and that his detention was warranted for the alleged
activities described by him in the grounds of detention. Failure of respondent No. 2 to indicate the aforesaid fact in the grounds of detention and
the order of detention, renders the detention of the detenue liable to be quashed.
(b) That according to the grounds of detention, the detention of the detenu has been ordered on the basis of a report. However, it is not indicated
as to who has submitted the report and what does that report contain. The detenu has not been supplied with the copy of the report and therefore
a valuable right of his, as guaranteed to him by Article 22(5) of the Constitution stands infringed. The detention of the detenu on ground as well is
liable to be quashed.
(c) That the respondent, No. 2 has not recorded his satisfaction while passing the order of detention against the detenu as envisaged by Section 8
of the Public Safety Act of 1978. The detention of the detenu is liable to be quashed on this ground as well;
(d) That the detention of the detenu has been ordered on the activities alleged to be prejudicial to the security of the State and Public order since
an order of detention which has been passed on the alleged activities prejudicial to the security of State and Public order, has been held to be
invalid therefore, also the detention of the detenu is invalid, unconstitutional, and unsustainable.
(e) That otherwise also, the grounds of detention are vague, unreal,uncertain, indefinite and against the object sought to be achieved under the Act
of 1978. The grounds of detention have a preamble. The preamble is so vague that nothing can be made out of it and consequently no effective
representation could be made by the detenu against the order of detention. The detention on this ground as well lacks its validity and is therefore
liable to be quashed;
(f) That the incidents of 17-1-1985, 17-3-1985, 14-5-1985, 16-8-1985 and 6-9-1985 have been made the basis for detaining the detenu under
the Act of 1978. According to the law of preventive detention, the detention can, be ordered only on the grounds which are proximate in time.
Since the grounds relied upon against the detenu are too stale in point of time, therefore in accordance with law laid down by Supreme Court, the
detention is liable to be quashed.
(g) That the incident dt/- 17-11-1986 does not make out a ground for detaining the detenu. After organizing the rally at Iqbal Park, who became
violent and what did he do after becoming violent is not indicated in the grounds, of detenion under reference. Consequently the ground is
untenable in the eyes of law for detaining the detenu.
(h) That in so far as the incident relatable to Dec. 1986 is concerned, it is alleged that the party of the detenue by resorting to violence, stone
throwing tried to disturb the communal harmony in the valley. What kind of violence was resorted to by the party is not indicated in the said ground
of detention. Where did the stone throwing take place and how the communal harmony had disturbed and where, is not also pointed out in the said
ground of detention. Merely for the reason that a case has been registered by police station Maisuma and Shergar, the respondent No. 2 is not
justified in detaining the detenu' under the Act of 1978.
(i) That incident dt/- 24-2-1987 is again not relatable to the detention of the detenu. Assuming that the statement was made by the detenu on 24-
2-1987, it hardly renders him liable for detention. By saying that Kashmir question is still unresolved according to the United Nations Resolution,
the detenu has not committed a sin muchless an act which would bring him within the ambit of preventive detention. Freedom of expression is a
cherished and guaranteed right under the Constitution of India and cannot be abridged by detaining a person under the provisions of the Act of
1978 (J). That the incident dt/- 4-3-1987 is again unfounded, what kind of statement was made by the detenu and how it hurt the feelings of
minority community which admittedly is the Muslim community) in the Indian Union is not indicated in the aforesaid ground of detention.
Registration of cases hardly advances the case of the respondents.
(k) That the incidents of 8th, 9th and 10th of March 1987 hardly warrant the detention of the detenu, Where these statements were made in the
public meetings, it is not made clear in the ground of detention. How communal harmony was affected by these statements is not also indicated in
the ground of detention. Therefore, the grounds of detention are clearly untenable and consequently the detention of the detenu is rendered invalid.
(l) That the grounds concerning the creation of liason with other like minded communal groups for fighting elections cannot be made a ground for
detaining the detenu. By asking people to vote for a particular party, no violation of provisions of Section 8 of the Public Safety Act can be said to
have been committed This ground as well is legally unsustainable and is consequently liable to be declared void.
(m) That from the facts and circumstances explained above, the detention of the detenu is wholly unwarranted and is not within the competence
and authority of respondents. The detenu has been deprived of his liberty on unfounded and baseless grounds. The grounds of detention as has
been stated herein above are totally vague, unreal and indefinite. No detention can be therefore be maintained on these grounds against the detenu.
On admission of the petition to hearing, notice was issued to the respondents. They were represented by Mr. Mufti Mehraj-ud-Din, Additional
Advocate, General. Despite numerous opportunities given to him, he failed to file the counter-affidavit on behalf of the respondents. With the result
that the case was heard in absnece of the same. Non-filing of the counter-affidavit will have an important bearing on the factual position of the case,
and the allegations made in the writ petition will remain unrebutted.
I have heard the learned Counsel for the parties and have also gone through the file thoroughly.
It may be stated at the very outset, that in view of Section 16A of the Act, each and every ground of detention shall have to be scrutinized.
Firstly, it is alleged that the detenu was in police custody when the order of detention was passed against him and the detaining authority has
nowhere either in his letter dated 6-4-1987 or in the grounds of detention, showed his awareness of this important fact. From the perusal of the
letter dt/- 6-1-1987 and the grounds of detention attached therewith, it is manifest that the detaining authority has not mentioned the factum of
arrest of the detenu anywhere. This allegation of the petitioner is supported by an affidavit which stands uncontroverted. It was the duty of the
detaining authority to indicate his awareness about the detenu having been under arrest at the time of issuance of the detention order. It was
necessary for him to indicate as to why the detention order was required to be passed when the was already in the custody of police. Having taken
recourse to the prevention detention in respect of a detenu who was already in police custody. It should have been indicated that the detenu could
not be dealt with effectively under the ordinary law. Having failed to show his awareness about the arrest of the detenu, it is to be held that the
detaining authority has not applied his mind and has passed the order arbitrarily and mechnically.
Secondly, it is alleged that the copy of the report as mentioned in the preamble of the detention order and which was relied upen by the
detaining authority for passing the detention order has not been supplied to the petitioner which has deprived him of his fundamental right to make a
representation against such order. This allegation too stands unrebutted as no counter-affidavit has been filed by the respondents. Making of
representation against the detention is a fundamental right of a detenu, guaranteed to him under Article 22(5) of the Constitution. If the material
forming the basis of the subjective satisfaction of the detaining authority has not been supplied to the detenu, it shall be deemed to have deprived
him of his fundamental right to make the representation to the competent authority against such detention and would invalidate the very order of
such detention. This is a lacuna which goes to the root of the detention and knocks out its very base.
Thirdly, the detention order has been passed for preventing the detenu from his alleged activities which are prejudicial to the security of the State
as also to the maintenance of public order. Such type of order is against the mandate as contained in Section 8 of the Act. The detenu could be
detained either for his activities prejudicial to the maintenance of public order or the security of the State, and not for both at one and the same
time. Both grounds could not be clubbed together. The expressions 'Public order' and 'security of State' are two separate and distinct concepts
and have been clearly defined in Section 8(3)(a) and 8(3)(b) of the Act. Therefore, their clubbing together for the purposes of detaining a citizens
of India wll be violative of Section 8 itself. The detaining authority has to strictly comply with the provisions of Section 8 while passing an order
thereunder. Any departure from the established procedure as provided by law shall affect the very detention order.
In G.M. Shah Vs. State of Jammu and Kashmir, , it has been ruled that detaining a detenu by placing reliance on both the basis i.e. for
preventing him from acting in any manner prejudicial to the security of the State or maintenance of public in the grounds furnished to him is illegal.
Fourthly, the perusal of the preamble of the grounds of detention shows that it is really vague. The vagueness is writ large on it, becasue it is not
stated as to when the detenu challenged the accession of Jammu and Kashmir with Union of India and where and in what manner he trained the
muslim students and when and where he decided to collect arms and ammuntion and from whom? This vaugenes of the preamble of the grounds of
detention must be deemed to have taken away the right of the detenu to make an effective representation against the detention order, which was
his fundamental right. Moreover, it has deprived the deteun of his right to know the basis of the order of detention which led to the subjective
satisfaction of the detaining authority.
Fifthly, the incidents of 17-11-1985, 17-3-1985, 14-5-1985, 16-8-1985 and 6-9-1985 are all so stale in point of time and are not proximate
with the order of detention of the detenu. Detention order on the basis of stale grounds which are too remote in point of time have no nexus with
the object sought to be achieved.
In Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, , it has been held. that irrelevant and vague grounds have no
connection with the satisfaction of the authority making the order of detention under the Act.
Sixthly, as regards the incident of 7-11-1986, it too does not make out a ground for the detention of the detenu under the Act. Nothing has
been said as to what sort of violence was resorted to in consequence of such public meeting unless banned under law is the fundamental right of
citizens and would not be a ground for detaining him under the Act.
Seventhly, as regards the incident of Dec. 1986, it is also vague. Even, the date and place where disturbance was caused is not known to the
detaining authority. Srinagar city is a big city and mere saying that disturbance was created in the city is not a good ground to detain a citizen of
India under the Act. Where did the stone throwing take place and how the commnal harmony was disturbed and where, has not been indicated in
the said ground of detention. If this is not a vague and stale ground, what else can be termed as such?
Eightly, the incident on 24-2-1987 at Lal Chowk also has no nexus with the object sought to be achieved, and will not attract the provisions of
Section 8 of the Act. The incident of 4-2-1987 is also of the same kind what kind of statement was made by the detenu and how did it hurt the
feelings of minority community is not indicated therein. Same is the case with the incidents of 8th, 9th and 10th of March, 1987.
Mr. Qayoom submitted that in March, 1987, the elections to the Jammu and Kashmir Assembly were held and the detenu was also a
candidate from the Amirakadal Constituency opposing the candidate of the ruling party. According to him all the speeches, allegedly, made by the
detenu in March, 1987, were in connection with the canvassing in the elections and therefore, could not attract the provisions of Section 8 of the
Act.
The last ground of detention also concerns the Assembly elections in March, 1987, and cannot be a valid ground for the detention of the
detenu.
For the reasons made above, I allow the petition and hold that the detention order of the detenu dt/- 4-4-1987 passed by the District
Magistrate Srinagar is illegal, unconstitutional and not sustainable in the eye of law. The said order is, therefore, hereby quashed. The detenu is
ordered to be set at liberty forthwith. The Superintendent, Sub Jail Hiranagar, Jammu, shall be informed accordingly.
Let the file be consigned to records.