Wali Mohd.Bhat vs Distt.Magistrate, Baramulla

Gulzar Ahmed, detenu has been detained under the orders of District Magistrate, Baramulla, Under S. 8 of the J and K Public Safety Act,

1978, (hereinafter referred to as the Act.) His father Wali Moh'd Bhat, petitioner herein, has challenged the order of detention by filing the present

petition. The grounds of detention which were served upon the detenu read as under :

On 621985 in the meeting convened by the workers of JamatIIslami in Iqbal Park, Sopore, he along with his followers rewarded the leader of

JamatiiIslami Syed Ali Shah Geelani a car to prompt him for active antinational activities. He incited and provoked the public to spread enmity in

between the different religious communities. On 821985 he along with associates convened a meeting in the house of Gh. Mohiuddin Mandloo

(Advocate). In the meeting they decided that on 1121985 a hartal would be observed in Sopore town in memory of Maqbool Bhat. For

celebration of this day, pamphlets were pasted on conspicuous places in Sopore town which contained inflammatory material which forced the

shopkeepers to observe hartal on the said day. The individual also incited the public for taking out processions for describing Maq bool Bhat as a

martyr and raised antiIndia slogans and disrupting peace.

On 2511985 he along with his followers held a meeting in the house of MohiudDin Mandloo R/o NowHamam Sopore in which it was decided

that on 2611985 (Republic Day) they would hoist black flags in Sopore town and spread hatred against India.

On 8121984 he along with his other associates and workers of JEI convened a secret meeting in the house of Ab. Langoo S/o Ahsan Langoo

R/o New Colony Sopore which was concluded with the decision that they would incite people to go for a boycott in Parliamentary Elections so

that Govt. of India will get a notion that people of Kashmir are not with India and they in no case desire to be slaves of India.

On 8111984 he along with his other associates held a secret meeting in his father's house (Wali Mohd Bhar alias Adil) in which it was decided

that they would spread hatred. He also decided in the said meeting that a false rumour would be floated in Sopore town that Masjid Asqa had

been put ablaze so that the sentiments of the Muslim community would get hurt and thereby would arise a situation for disruption of public order in

the town. On 9111984 he along with his associates floated the same frivolous rumour to disturb the public order consequent upon which

shopkeepers were forced to observe hartal.

On 3081984 he along with his other associates held a meeting in the house of G. MohiudDin Mandloo R/o Now Hamam Sopore in which it

was secretly decided to take advantage from the death of Gh. Hassan Naikoo R/o Baramulla who expired during military interrogation and disturb

the public order and peace. He further reiterated in the said meeting that they would liberate Kashmir from the illegal occupation of India as there is

no valid accession of Kashmir with India and described Kashmir to be an international affair and disputed area.

On 3181984 he incited college students to go on strike and raise antinational slogans in Iqbal Market Sopore upon which a case FIR No.

288/84 u/ss. 147, 341, 342 RPC P/S Sopore was registered against him and the said challan has been produced in the Court of law.

He is a staunch worker of Peoples League and has also affiliation with liberation front. He is trying to overthrow the legally constituted Govt. by

use of force and is creating public disorder. He is propagating and promoting enmity and creates hatred among various communities.

Mr. G. N. Kanth, District Magistrate, Baramulla has filed counter stating therein that Gulzar Ahmed detenu was ordered to be detained for

preventing him from acting in any manner prejudicial to the maintenance of public order. The order of detention was issued under No. 45 (CM) of

1985 dt. 931985 and the detenu was directed to be lodged in Central Jail, Srinagar. The Govt. in exercise of the powers conferred by subsec. (4)

of S. 8 of the Act, after considering his report regarding the detention order approved the said order. Simultaneously with the issue of detention

order, he in pursuance to S. 13(1) of the Act informed the detenu regarding his detention order being made on the grounds specified in the letter

enclosed to the above referred communication. Copy in duplicate along with its enclosures in duplicate containing the grounds of detention were

forwarded to the Superintendent, Central Jail, Srinagar for serving the same on the detenu. The detention of the detenu was ordered on sufficient

grounds and the contentions raised by the petitioner are totally misconceived.

I have heard learned counsel for the parties. Learned counsel appearing for the petitioner has argued that the grounds of detention are vague and

the same do not in any way attract the provisions of Section 8 of the Act. Mr. Khan, learned Govt. Advocate has, however, controverted the

contention of counsel for the petitioner by referring to the grounds of detention, which, according to him. make the detenu liable for action as

provided under S. 8 of the Act for his activities being prejudicial to the maintenance of public order.

The detention of the detenu has been ordered mainly on the ground that his remaining at large was prejudicial to the maintenance of the public

order. The term ""acting in any manner prejudicial to the maintenance of public order"" has been defined in S. 8 of the Act itself which reads as

under:

(3) For the purposes of subsec. (1).

(a) xx xxx xxx xx xxx

xx xxx xx xx xx

(b) ""acting in any manner prejudicial to the maintenance of public order"" means

i) Promoting, propagating or attempting to create feeling of enmity or hatred or disharmony on grounds of religion, race, caste, community, or

region;

ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking, or otherwise abetting the use of force where such

preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;

iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of

Section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death

or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offence disturbs, or is likely to

disturb public order.

Section 10A of the J and K Public Safety (Amendment) Ordinance, 1984 provides that 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 not be deemed to be invalid or

inoperative merely because one or some of the grounds is/are vague, nonexistent, nonrelevant, not connected or invalid for any other reason

whatsoever.

Learned Govt. Advocate in fairness has conceded above referred grounds of detention i.e. Grounds Nos. 2, 3, 5 and 6 are of general nature

and cannot be made basis for detaining the detenu. These grounds besides being of general nature, are not covered by the definition of ""acting in

any manner prejudicial to the maintenance of public order"". These grounds, therefore, are required not to be considered.

So far ground No. 1 is concerned, it pertains to a meeting convened by the workers of JamatiIslami in Iqbal Park, Sopore, on 621985 where

the detenu incited and provoked the public to spread enmity in between different religious communities. These facts come within the purview of

definition ""acting in any manner prejudicial to the maintenance of public order"" as provided in Cl. (b)(i) of subsec. (3) of S. 8 of the Act. Our

Constitution is based on the basic features of secularism to which great importance has been attached and this ideology of secularism finds place in

the abovesaid provision of law. The second part of this ground provides for a meeting held in the house of one Ghulam MohiudDin Mandloo,

advocate, on 1121985 wherein it was decided to observe hartal in Sopore in the memory of Maqbool Bhat and shopkeepers were forced to

observe Hartal on that day. This portion of the ground is not covered by the above referred definition ""acting in any manner prejudicial to the

maintenance of public order.

In Ground No. 4 it has been mentioned that on 8111984, the detenu along with his other associate held a secret meeting in his father's house in

which it was decided that they would spread hatred by floating a rumour in Sopore town that Masjid Asqa had been put ablaze whereby

sentiments of Muslim community would be aroused and create a situation for disruption of public order in the town. The detenu as such on

9111984 along with his associates floated such rumour in the public to disturb the public order consequent upon which shopkeepers were forced

to observe hartal. Learned Govt. Advocate wanted to bring these facts within the ambit of Cl. (b)(iii) of subsec. (3) of S. 8 wherein attempt to

commit or committing or otherwise abetting the commission of mischief within the meaning of S. 425 of the Ranbir Penal Code has been made a

ground to come within the definition of ""Acting in any manner prejudicial to the maintenance of public order"". ""Mischief has been defined in S. 425

R.P.C. which necessitates three ingredients"".

i) intention or knowledge of likelihood to cause wrongful loss or damage to the public order or to any person;

ii) causing the destruction of some property or any change in it or in its situation;

iii) such change must destroy or diminish its value or utility or affect it injuriously.

The situation created by the detenu as detailed in ground No. 4 does not bring his action within the purview of definition of ""mischief"" as referred to

above. He spread a false rumour in order to disturb public order which ultimately resulted in the forcing of shopkeepers to observe hartal. It is not

a mischief in its technical sense as observed above.

The next ground which requires to be considered is ground No. 7 of the grounds of detention. It provides that the detenu is a staunch worker of

People's League and has also affiliation with Liberation Front, whereby he is trying to overthrow the legally constituted Govt. by use of force and is

creating public disorder. It is further mentioned in this ground that he is propagating and promoting enmity and creating hatred among various

communities. The first part of the ground brings the case within the ambit of Cl. (b)(ii) of subsection (3) of Section 8 of the Act, and the second

part of this ground is covered by Cl. (b)(i).

The above referred grounds of detention against the detenu are of a serious nature and cannot be overlooked and termed as ""vague'"". It is

always the subjective satisfaction of the District Magistrate which is the primary consideration and which the Court is to see and observe while

deciding such cases because the District Magistrate being in full control of the situation, is the proper person to come to such a conclusion.

Ordinarily, the Courts should always refrain from finding faults with the orders of the District Magistrates where there is proper subjective

satisfaction on their part. In the instant case grounds 1 and 7 of the grounds of detention bring the acts of the detenu within the orbit of S. 8 of the

Act and there is subjective satisfaction on the part of the District Magistrate in detaining the detenu on these two grounds. Considering the law as

contained in S. 10A of the J and K Public Safety (Amendment) Ordinance, 1984, these grounds can be taken into consideration for deciding the

matter in issue.

In view of the above discussed facts and circumstances, I do not find any good ground to interfere with the order of District Magistrate,

Baramulla, and dismiss the petition.