Mohammad Altaf Shah vs State and Another

This is a writ of Habeas Corpus challenging the order of the District Magistrate, Baramulla dated: 2141987 detaining Ab. Ahad Sheikh r/o Tujar

Sharief. Sopore, under Section 8 of the Jammu and Kashmir Public Safety Act.

The grounds of detention are reproduced, as under, for the sake of reference:

OFFICE OF THE DISTRICT MAGISTRATE BARAMULLA

To,

Sh. Abdul Ahad Sheikh S/o Ab. Rehman Sheikh R/o Tujar Sharief, Sopore.

You are a staunch worker of MUF. You have been very active in carrying the mission of creating disaffection in the State by pursuing the

principles of the said Organization since last 20 years. You have also been active in agitating the accession of the State with the Union of India You

have been leading your party in spreading contempt against the Government of India and openly challenge the accession. You have declared Jahad

against the present Governments by your party workers and also incite people to do so.

You have taken serious turn against the Governments legally established in the State and during recent elections have also criticised Union of India.

The elections have proved a clean field for spreading fire of communalism and criticising the constitutions of India and State. You have incited

people on the name of Islam and have categorically said that they should support MUF only because it is the only way to cut relations with

Government of India and to liberate the State from the clutches of Indian Samraj. In various meetings organised by MUF you have criticised the

relations of different communities and have asked to vote for your party on the name of Holy Quran and Islam. You have been responsible for

injuring the feelings of minority communities; you never believe and provoke people not to accept the accord of State with the Union of India. You

stress on the people that Kashmir has been forcibly occupied by irreligious forces. You have convinced the people by giving false instance that

restrictions are imposed OB Holy Quran and massacre of Muslims. You have asked the people to remain prepared for sacrifice against Indian rule

which is irreligious in character

On 3011987 at Dangerpora Sopore you addressed a meeting of MUF workers in which yon said that to vote for MUF is to succeed Islam

against the rule of irreligious India Samraj. The issue of accession is alive and people of Kashmir have no security under the present rule. India has

forcibly occupied the territory of Kashmir.

On 2121987 you addressing a meeting of MUF in Jamia Qadeem Sopore said that today is the death anniversary of Late Maqbool Bhat. You

stressed the shop keepers to close their shops in order to celebrate the day in the nane of Late Maqbool. You said that late Maqbool Bhat was a

great leader who played part for the liberation of Kashmir and sacrificed his life for fighting the issue. You asked the people to raise a revolt and

struggle so as to strengthen your party and to liberate Kashmir as a true musalman.

On 631987 you delivered a speech at Main Chowk Sopore and said shortly you would clear the ground for throwing out the Indian rule from the

state because the people have to vote on 23rd March and support MUF on the day of election. You said that to vote in favour of NCF or

Congress is an irreligious and non Muslim act. In case any Muslim will vote for the above said parties, he will be punished by the Almighty, you

stressed the Muslims of the State to unite and liberate them from forcible rule of India.

On 1031987 in a gathering at Chinkipora Sopore you spoke against the Indian rule and asked the people to vote for MUF in order to shatter the

rule of State as well as the Indian Government. You have openly said that ell laws are irreligious in character and Muslim have to safeguard under

such laws. The Muslims of the State and India are living in a State of slavery and to liberate them is to vote and succeed MUF.

On 1931987 you addressing an assembly at Dangerpora Sopore openly said that all Islamic forces should unite if they have to succeed Islam. This

is the only way to solve the Kashmir problems. The new Government under the rule of MUF will bring J&K under the rule of Pakistan and thus

Muslims will live a life of peace and tranquility. Indian rule is an irreligious rule and Muslims should take to arms and by force vacate the said rule.

On 1741987 after offering Friday prayers at Baitul Mukaram mosque Baramulla in a gathering of MUF you provoked the people to come out in

the form of procession The procession stopped traffic and created confusion in passing through the streets of Baramulla and raised the following

slogans, MUF Zindabad, MUF kay Kaidiyoon Ko Raha Karoo, Vote Choor Sarkar Hai Hai, Farooq Rajiv Sarkar Hai Hai. You were leading the

said procession. This procession was lead against the promulgation orders of District Magistrate Baramulla under Section 144 Cr, P.C. As a

consequence of this, a case FIR No. 98/87 under section 188/341 RFC P/S Baramulla was registered against you which is under investigation.

In view of the above mentioned facts you have exercised people to raise a revolt against the lawful governments established under law and created

disaffection against the union of India. You have been responsible in spreading fire of communalism by supervision of minority communities on

religious lines. Our activities are highly prejudicial, antinational, communalistic and separate in character. You have created an atmosphere of terror

in the minds of minority in general. Under the aforementioned circumstances, your detention under the provisions of J&K Public Safety Act has

become essential.

The petitioner has assailed the detention order, inter alia, on the following grounds:

i. That in the detention order or the grounds of detention it is nowhere mentioned as to on the basis of which/whose report the respondent No. 2

had to detain the said detenue. In the first two paras of preamble to the grounds of detention the allegations leveled against the detenue are vague

and are not supported by any evidence or report of any agency. This is based upon mere surmises and concoction and is as such liable to be

disbelieved and on this count the grounds of detention and the order of detention are liable to be set aside.

ii. That the material on the basis of which the grounds of detention have been formed against the detenue has not been furnished to the detenue

although in Annexure Pl though at the foot note it is mentioned that copies of FIR and diaries 3 leaves are enclosed. No enclosures, as claimed in

the detention order Pl have been furnished to the detenue. As a result the detenue could not make an effective representation against the said

detention order. As such, the detention order alongwith the grounds of detention are liable to be set aside.

iii. That the incidents alleged and attributed to the detenue on 30187, 11287, 6387 and 10317 and 17487 are vague unreal, indefinite and

imaginary. The detaining authority was duty bound to see as to whether the facts and material which shall weigh with the detaining authority to

reach the requisite satisfaction were such as to involve the provisions of Public Safety Act against the detenue. The respondent No. 2 has not relied

on material facts, is writ large from the perusal of Annexure Pl and P2 of the incidents, some of which have been made as the basis of detention.

The detention order as such is bad in law and untenable and liable to be quashed.

iv. That at the time of passing of detention order the detenue was in police custody which fact has been suppressed by the respondent No. 2 both

in the grounds of detention as well as in the order of detention. This indicates nonapplication of mind on the part of respondent No. 2 and on this

ground alone the detention order as well as the grounds of detention against the detenue is liable to be quashed.

v. Since the respondent No. 2 has not recorded his satisfaction for detaining the detenue under Public Safety Act, 1978 as is required under law

and also because of the fact that the said Act can be invoked only for the activities which are against the maintenance of peace and public order

which is nowhere established or proved from the grounds of detention the order of detention and the grounds of detention are liable to the set

aside. It may be mentioned that no public order or peace was ever disturbed by the detenue even if the grounds of detention are presumed but not

admitted to be correct.

vi. The allegations leveled in the concluding paragraph of the grounds of detention as contained in Annexure P2 are quite vague in as much as these

are not substantiated with any material evidence on record. Political affiliations with a party which was participating in elections and contesting the

same within the Constitution of India after presuming though not admitting the allegations leveled against the detenue can not render a person liable

to be leveled as antinationalist.

Moreover such difference of opinion of two political parties in democratic country must not attract the provisions of Public Safety Act, 1978 as no

public order or peace was put to danger by any act of the detenue as alleged.

I have heard the learned counsel for the parties. It may be stated at the very out set that no counter affidavit has been riled by the respondents

despite numerous opportunities given to them, as a result of which the allegations made on affidavit by the petitioner in the writ petition have

remained unrebutted.

Firstly, it is alleged in the writ petition that the material shown to have been supplied to the petitioner at the time of serving the detention order on

him is not correct. In the forwarding letter of the said order, it had been shown that some leaves in English and Urdu besides copies of FIR and

also some leaves of diaries were supplied to the detenue. The petitioner has denied to have received any such material. This allegation of nonsupply

of material has not been denied by the respondents, which vitiates the very detention order. The detenue has been denied the opportunity of

making a representation against the order of detention which was the fundamental right under Article 22 (5i of the Constitution of India. This

ground alone is itself sufficient to quash the order impugned.

Secondly, in the grounds of detention it is nowhere mentioned as to on which material the detaining authority was satisfied to pass such order.

After all the subjective satisfaction of one authority must be based on some material. Which was that material is not mentioned and nor has it been

supplied to the detenue. This also vitiates the order of detention.

Thirdly, it is nowhere mentioned as to whether the detention of the detenue was for the maintenance of public order or for the security of the

State which speaks volumes about nonapplication of mind by the detaining authority

S. Fourthly, it appears that there was no material before the District Magistrate on the basis of which he could form the opinion that the detenue

would act in future in a manner prejudicial to the maintenance of public order. The very Public Safety Act provides for preventive detention, and

such detention is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the

statute. This also violates the detention order.

Fifthly, the first two grounds of detention are very much vague, where some imputations of twenty years old have been made against the

detenue. For such alleged actions of the detenue the provisions of Public Safety Act cannot be invoked. Moreover, no material has been disclosed

to show the involvement of the detenue in such activities, much less, to justify his preventive detention. After all the fundamental right to liberty of a

citizen cannot be taken away on the whims and caprices of the detaining authority. There should be some objective material before him for his

subjective satisfaction. One should not be satisfied by mere gossips and that too for curbing the liberty of a citizen which is guaranteed to him by

the Constitution. As regards the other grounds, they all pertain to the period when elections to the State Assembly were held. The allegations made

therein are more of political nature and have nothing to do with the maintenance of public order.

In these circumstances, the detention order impuged must be quashed.

The writ petition is, therefore, allowed and the order of detention hereby quashed. The detenue is entitled to be set at liberty forthwith unless his

detention is required in connection with any other case. The superintendent

Central Jail, Jammu, shall be informed accordingly.