Raghbir Singh vs State of Jammu and Kashmir and Another

Mazhar Ali Shah, J.—Petitioner Raghbir Singh by this Habeas-Corpus Petition has challenged the detention of his son Jung Bahadur Singh,

who has been detained u/s 8 of the Jammu and Kashmir Public Safety Act, 1978 as stood amended (hereinafter called the Act) by District

Magistrate, Baramulla vide his Order No. 9 of 1985 dt. 24-2-1985 communicated to the detenue Jangh Bahadur Singh vide No.

DM/B/PSA/19/85 dated 28-2-1985 along with the grounds of detention in English as well as in Urdu language served on the detenu on 1-3-1985

under receipt, which is on record of the District Magistrate, which has been placed before me by the learned Government Advocate at the time of

hearing.

The petitioner in his petition has submitted that the detenu was arrested by S.P.C.I.D., Srinagar on 14th of Jan. 1985, of whom the whereabouts

were not known to him despite enquiry from S. P., Baramulla, thus he was compelled to file a Habeas Corpus Petition before this Court on 30th of

January, 1985. The said petition was registered as number 22 of 1985, which is also annexed with the present petition and stands disposed of as

the same has become infructuous vide order passed by this Court on 6th of April, 1985 on account of the detention of the detenu under the Act. It

is also pointed out that in the said writ petition the Government Advocate produced on 27-2-1985 two letters, one from C.I.D. and the other from

the Chief Prosecuting Officer, Srinagar showing that the detenu was not arrested nor was in their custody. In consequence whereof this Court was

pleased to issue directions to S. P., Baramulla to produce the detenu in the Court on 6th Mar. 1985. From the perusal of the record, it also

transpires that the said order has not been complied with and hence a Contempt Petition is also moved by the petitioner before this Court, which is

registered as Contempt Petition No. 3 of 1985 (Criminal), wherein the notice has been issued to the respondent, which is pending disposal. In the

present petition, learned Counsel for the petitioner attacks the detention and challenged the detention, firstly on the ground that the material on the

basis of which the detention order is passed has not been supplied to the detenu depriving him from making an effective representation, the grounds

are vague as no specific dates have been mentioned, they are stale and have no annexures with the grounds on which the detenu has been

detained. Secondly, the District Magistrate has not shown his awareness in the order about the arrest of the detenu at the time when the order was

passed and thirdly that the satisfaction part in the grounds of detention and also the order is missing as a result of which the order of detention on all

the three counts is liable to be quashed. Reply affidavit has been filed by District Magistrate, Baramulla, Mr. G. N. Kanth on 1-4-1985 refuting the

allegations made by the petitioner regarding the detention of the detenu. He has also given in detail the procedure adopted by him and has in

categorical terms that the detention order stands approved by the State Government and in pursuance of Section 13(1) of the Act. The detenu was

informed of the grounds, which were explained to him with the enclosures through Superintendent, Central Jail, Srinagar. It is also pointed out in

para 2 of the affidavit:

That the detention of the detenu Jangh Bahadur Singh has been ordered on sufficient and valid grounds warranting his detention.

The grounds of detention are quoted as under :

Grounds of detention of S. Jang Bahadur Singh S/o S. Raghbir Singh S/o Panzalla, Baramulla.

Case FIR No. 309/84 u/s 457/380, RPC read with Section 3 of the Official Secrets Act and Section 3 of Enemy Agents Ordinance has been

registered against him at Police Station, Baramulla.

He was enrolled in E.M.B.L. (Indian Army) in the year 1969 at Srinagar as Fitter Mechanic. No. 7117013 was allotted to him. After

completing his Training in April, 1971 he was posted at Babine II Army Bde Madhya Pradesh. He remained posted there for three years. In 1974

he was posted at 221 Field Workshop, Baramulla and remained there up to 1977. He was discharged from the Army in December 1977. He was

involved in various sabotage/Anti-National activities in the State. He is involved in carrying vital and secret information across the Border and is

actively engaging in Smuggling of arms/ammunition with intention to distribute the same among Anti-National elements in the State so that these

could be used against the Govt. of J & K.

In the year 1978 he with the assistance of Alam Hussain Kataria S/o Immam-ud-Din Kataria R/o : Chakety (Pak occupied Kashmir) at present

Nowranda Uri, who is a die hard pro-Pakistani and created contacts with Hawaldar Mohd. Rafiq of Pakistan occupied Kashmir Intelligence. Sh.

Alam-Hussain crossed to this side of line of actual control for Anti-National Sabotage activities. Moreover he established contacts with Khurshid

Ahmad Chalkoo S/o : Ali Mohd Chalkoo R/o : Hathlanga Uri Mohd Ashraf (Bus Conductor) R/o : Salamabad Uri; Mushtaq Ahmad Shah S/o :

Habid Shah R/o : Binner Kahdora Baramulla. Sher Zaman R/o Aresa Uri : Gh. Nabi Sheikh S/o Lassa Sheikh R/o : Salamabad Uri and Allay-ud-

Din S/o : Habib-ullah Joo R/o : Garkote Uri for obtaining vital/secret documents from Indian Army which were to be handed over to Pak

Intelligence Authorities. He rendered assistance to the said Alam Hussain in creating contacts with the individuals mentioned above.

In the year 1978 the said Alam Hussain crossed over to this side of line of actual control secretly and case FIR No. 58/78 was registered

against him at Police Station, Uri in which he got convicted and was imprisoned.

In the year 1983 Alam Hussain again visited this side of Line of actual control secretly for nefarious/sabotage activities and he had a meeting

with S. Jung Bahadur Singh.

In the year 1984 he again met the said Alam Hussain on this side of line of actual control and contacted his couriers along with him. The purpose

of Sh. Alam Hussain's visit was to get/steal important files, which carried secret and vital information about Indian Army. Alam Hussain wanted to

deliver the files to Pak Intelligence authorities. He played a very vital role in getting/stealing important files from Headquarters of 19 Inf. Division,

Baramulla Kashmir. He delivered these files to the Enemy on the other side of the line of actual control on payment of Rs. 1000/-

In the year 1984 he again came into contact with Khurshid Ahmad Chalkoo S/o : Ali Mohd. Chelkoo R/o Hathlanga Uri who is a die-hard Pak

Agent and indulges in subversive/espionage activities. It was with his help that the said Khurshid-Ahmad Chalkoo succeeded in procuring some

arms from across the Border with intention to distribute these to anti-National Elements so that these could be used to overthrow the Govt. of J &

K.

It is most likely that he will commit acts of sabotage/subversion in the State in the near future and as such he is a threat to the security of the

State. His remaining at large is highly prejudicial to the security of the State and his detention under the provisions of Public Safety Act has become

imperative.

Sd/- (G. N. Kanth)

District Magistrate, Baramulla.

Learned Counsel for the petitioner arguing on the points enumerated above in support of his contention relied on the authorities of their Lordships

of the Supreme Court reported in Jai Singh and Others Vs. State of Jammu and Kashmir, ; Vijay Kumar Vs. State of Jammu and Kashmir and

Others, ; Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others,

, Ali Mohammad Mir Vs. State and Others, and unreported judgment of this Court in Habeas Corpus Petn, No. 47 of 1985 Ali Zaman Abbasi v.

District Magistrate Baramulla by which the detenus Sher Zaman Abbasi and two others have been released vide order passed on May 21, 1985.

On a careful examination of the above quoted judgments, I find that the facts of the cases referred to above are distinguishable and nothing has

been pointed out in the present case so as to equalise the ratio of the cases cited. On perusal of the record produced by the learned Government

Advocate at the time of hearing, I find that there is a receipt signed by the detenu on 1-3-1985 that the grounds in both the languages were served

and explained to him and the same were explained in kashmiri language also, which the detenu understood. He was also informed that he may

make a representation to the Government against his detention, which he has not made nor there is any allegation that on any account he was

prevented from making the effective representation. On a bare, reading of the grounds quoted above, it is also clear that none of the grounds can

be said to be vague so as to deprive the detenu from making the effective representation, the allegations are unequivocal and specially in such cases

where the grounds are related to the activities prejudicial to the security of the State and the continuous activities of the detenu right from 1978

about crossing over of the Border and his indulgence in the activities of the nature of subversive/espionage, it is difficult to get the exact date and

thus in my opinion the dictum of their Lordships of the Supreme Court in Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed

Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, is not applicable in the present case. On going through the dossier submitted to

the District Magistrate by Superintendant of Police C.I.D.,. it is also found that the grounds are not the repetition so as to attract the ratio of Jai

Singh and Others Vs. State of Jammu and Kashmir, . Similarly the facts of Ali Mohammad Mir Vs. State and Others, , Habeas Corpus Petn. No.

47 of 1985 (Supra) are not identical. In my opinion the satisfaction recorded by the District Magistrate in the grounds is sufficient to attract the

provisions of the Act for detaining the detenu. Learned Counsel for the respondents in reply submitted that in so far as the arrest of the petitioner

prior to the order of detention is concerned stands refuted by the report of the Chief Prosecuting Officer filed in Habeas Corpus-Petition No. 22 of

1985, the affidavit of the petitioner filed on 23-2-1985 showing that he saw the petitioner in custody is of no avail to him in the facts and

circumstances of the present case and even if he was in detention, it cannot be said that it has affected the order of the District Magistrate In any

manner passed under the Act to prevent the activities of the detenu for that and refuting the arguments of vagueness, learned Government

Advocate places hisreliance on Ujagar Singh Vs. The State of The Punjab, ; Masood Alam etc. Vs. Union of India (UOI) and Others, and Ganpat

Vs. State and Others, .

Their Lordships of the Supreme Court in Ujagar Singh Vs. The State of The Punjab, have held :

If while the detenu is in jail under a prior order of detention under a provisional Act, a subsequent order of detention under the Preventive

Detention Act is passed against him after several months mentioning the same grounds as in the prior order it cannot be said that the subsequent

order is mala fide or passed mechanically without proper satisfaction. The past conduct or antecedent history of a person can be taken into

account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man

that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.

Here in this case detailing the events right from 1978 to 1984 in the grounds, I find that the activities of the detenu are apparently such for which

the prior events were necessary to be shown in order to find that the future activities of the detenu are prejudicial to the security of the State. This

satisfaction of the detaining authority cannot be scrutinized by the Courts as a Court of Appeal. Their Lordships of the Supreme Court in Masood

Alam etc. Vs. Union of India (UOI) and Others, have held:

The jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining

authority. It is designed to prevent the mischief from being committed by depriving its suspected author of the necessary facility for carrying out his

nefarious purpose.

Thus I find that the grounds in the present Case are neither vague as held by his Lordship Hon'ble Justice Dr. A. S. Anand, as he then was, in

Ganpat Vs. State and Others, :

That such introductory facts can be given in the grounds of detention is well settled and an order of detention does not become invalid if these facts

are given in the grounds...It is only where the vagueness or indefiniteness of the grounds of detention is such that it makes an effective

representation by the detenu not possible that the detention would be held to be vitiated by the Court, Mere omission of time, place or the exact

date where the prejudicial activity was indulged into would not amount to any contravention of the constitutional right of the detenu to make

representation.

This is not a case where the detenu alleges or the petitioner that the detention was on nonexistent ground nor does he attribute any mala fides on

the part of the detaining authority in making the order/The ground on which the detention has been ordered are so specific that one cannot be

misled by saying that they were so vague so as to deprive the detenu of making the effective representation. The satisfaction recorded by the

District Magistrate in my opinion is also sufficient to hold that the District Magistrate has applied his mind to the facts and circumstances of the case

and have come to a subjective satisfaction that the detenu's activities are prejudicial to the security of the State, I do not agree with the arguments

of the learned Counsel for the petitioner that the grounds on which the detention order is made are not covered within the definition of the Act

prejudicial to the security of the state as provided u/s 8(3) of the Act. In ground No. 7 quoted above, it is specifically, alleged that the detenu

succeeded in procuring some arms from across the Border with intention to distribute these to Anti-National Elements so that these could be used

to overthrow the Govt. of J & K. Their Lordships of the Supreme Court in Mrs Saraswathi Seshagiri Vs. State of Kerala and Another, have held:

When the legislature has made only the subjective satisfaction of the authority making the order of detention; it is not for the court to question

whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority.

Following the above said dictum, I find that the detenu's activities, which are found by the District Magistrate prejudicial to the security of the

State on the grounds quoted above cannot be disturbed in this Habeas Corpus Petition.

For the reasons stated above, the Habeas Corpus Petition has no merits, it is accordingly dismissed. Contempt Petition No. 3 of 1985 referred

to above shall be laid before the Court for further proceedings on a date to be fixed by the Deputy Registrar.