Abdul Ghani v. State of Jammu & Kashmir

Bhargava, J. Abdul Ghani has filed this pellllon under Art: 32 of the Constitution praying for the issue of a writ of Habeas Corpus; allegmg that his detention in jail is illegal. He has been detained in pursuance of an order passed by the District Magistrate of Poonch in the State of Jammu & Kashmir under section 3 ( 2) read with section 5 of the J ammu & Kashmir Pre-ventive Detention Act, 1964 (hereinafter referred to as "the Act"). That order is reproduced below :-

"Whereas, I, Syed Mohammad Shaffi Andrabi, IAS, District Magistrate, Poonch am satisfied tha't with. a view to preventing Abdul Gani s/ o Asdha Caste Rather Kashmiri Muslim r/ o Chohana P /S Surankote District, ~oonch, from acting in a manner prejudicial to the security of the State, it is necessary so to do.

Now, therefore, in exercise of the powers conferred by section 3(2) read with section 5 of the Jammu & Kashmir. Preventive Detention Act, 1964, I, Syed Mohd. Shaffi Andrabi, IAS, District Ma~istrate.

Poonch, hereby direct that the said 1 Abdul Gani be detained in Central Jail Jammu subject to such condi- .tions as to maintenance of discipline and punishment for breaches of discinline as have been soecified in the Jammu & Kashmir Detenu General Order of 1968.

~ssued this day the 9th May 1970 under my hand and seal.

Sd/- S.M.S. Andrabi, IAS District Magistrate, Poonch." The order was passed on 9th May, 1970, and on the same day, the District Magistrate issued a direction under the proviso to section 8 of the Act which reads as follows :- ·

"Whereas Abdul Gani s/ o Asdha Caste Rather Kashmiri Muslim r/o Chohana p/ s Surankote District Poonch, has been detained in pursuance of order No. 38/PDA/70 dated 9th May, '70 made by me under section 3 (2) read with section 5 of the Jammu & Kashmir Preventive Detention Act, 1964, with a view to preventing him from acting in a man.ner preju-dicial to the security of the State and;

Whereas, I consider it against the public interest to disclose the ground of detention to the said Abdul Gani s/o Asdha Caste Rather Keshmiri Muslim r/o Chohana p/ s Surankote, District Poonch.

Now, therefore, in pursuance of section 8 read with section 13-A of the said Act, I heteby direct that the said Abdul Gani be informed it is against the security of the State to disclose to him the grouiids on which his detention order was made.

Issued this day the 9th of May '70 under my hand ·and seal.

Sd/ S. M. S. ANDRABI, IAS

Distt. Magistrate Poonch." The petitioner was actually detained on the 22nd May, 1970, in pursuance of the detention order and, on· the same day. he was informed that it is against public interest to disclose to him the grounds on which the detention order was made in pursuance of the direction made by the District Magistra•e, mentioned above. On this information being conveyed to him, his signa-tures were taken in token thereof on the back of the paoer on which this direction had been issued by the District Mai;strate. His detention was subsequently confirmed by the State Govern-ment, after the grounds on which 1he order had been made and the other particulars havin11; bearing on the matter had been examined by the Chief Minister. .On the<e facts, learned coun-sel annearine; for the petitioner ·has challenged the validity of the detention on seven different grounds.

The first ground is that, when the Constitution of India was applied to the State of Jammu & Kashmir by the order of the Premjent under Art. 370 of the Constitution, Article 35 was modified in its application to the State of Jammu & Kashmir by adding clause ( c) which reads as follows :-

"35. (c) No Jaw with respect to preventive deten-tion made by the Legislature of the State of Jammu & Kashmir, whether be1ore or after the commwcement of the Constitution (Application to Jammu & Kashmir) Order, 1954, shall 5e void on the ground that it is inconsistent with any of rhe provisions of this Part, but any such law shall, to the extent of such inconsist-ency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects thing done or omitted to be done before the expiratfon thereof".

It is by virtue of this clause ( c) of Art. 35 as contained in the Constitution applied to the State of Jammu & Kashmir that the provisions of the proviso \O section. 8 and section 13-A of the Act cannot be challenged on the ground of contravening the provisions of Art. 22 of the Constitution. This point was consi-dered by a Bench of this Court in Sampat Prakash v. State of Jammu & Kashmir and Another,(') where the validity of the proviso to s. 8 and of s. 13A of the Acf was upheld. Learned. counsel has urged that, in that case, the Court left the question open whether Art. 35 ( c) of the Constitution h<>d been va'idily or invalidilv introduced in the Con~titution in its application ·to Jammu & Kashmir. His argument is that this article was intro-duee<i by an order made by the President in exercise of his powers under Art. 3 70 and, by this provision, the fundamental right of a detenu to seek the remedy ae:ainst the detention in the Suoreme Court of India had been abride:ed, so that the application of this provision was in contravention of Art. 32 ( 4) of the .Constitution and, consequently, void.

This submission made by learqep counsel, on the face of it, has no substance at all. The introduction of the orovision con-tained in Art. 35 ( c), when aoolyine; the Constitution to the State of Jammu & Kashmir, did not in any way affect the right of a citizen of Jammu and Kashmir to move the Su,..reme Court of India! for an aonrooriate writ under Art. 32. The eff~ct of that amendment onlv was that. when aooro~r,hing the Su,..reme Court the detenu could not "Challenge the validitv of the Act on the g;ound thot anv nrovi<ion of it contravene<l the nrovi<inns of Art. 72. This rn~-iifir,atinn in •he Con<th1•ion ha<l. th"re-fore. no bearing at all on Art. 32(4). Further, under Art.

ABDUL GHAN! v. ;}\ & K. STATE (Bhargava, I.) 279 370, the President is given the full discre\ion to apply the Constitution with such exception and modifications as he lllily, by order specify. It was at the initial stage, when app ying the Constitution to the State of Jammu & Kashmir, that this modifica-tion was made in Art. 35 This was, therefore, not a case where any provision of the Constitution as already applied to Jammn & Kashmir was being modified in which case "Only a question could arise whether that modification was permissib,e. The modification at the initial stage of applying the Constitu-tion itself cannot be challenged on the ground that it abridges any of the fundamental rights. At the time of applying the Constitution, no such fundamental rights existed in the State of Jammu and Kashmir. They came into existence only by virtue of the Order of the President applying the Constitution and at that st;Jge they came into force in the modified form in which they were applied. This point raised by learned counsel, there-fore, has no force at all.

The second point urged was that, in the direetion given under the proviso to s. 8, the District Magistrate merely ordered that the petitioner be informed that it was not in public . interest to disclose the grounds of detention to him, and failed to add. a further direction that a cpoy of that order must be actually served on the petitioner. It was urged that a copy of that dir~c­ tion in writing should have been delivered to the petitioner and, for this proposition, reliance was placed on the deci<ion of this Court in Harikishan v. The S'.ate of Maharashtra & 0 hers( 1). That case, however, has no application at all, becau~e in that case, the question that arose was whether it was necessary that a cony of the grounds of detention, which were quite len11thy, should be delivered to the detenu in addition to them 'll"OU'lds being communicated to him b}\ being read out and trans!a•ed. Jn the present case, under the proviso to section 8, no gmu11d~ of detention have been served and there is no questio11 of th' petitioner knowin~ the grounds in detail iti order to ma "e a re-presentation against them. He was only to be informer! thaf it was not in the nublic interest to disclose the ~roun<i<:. For •u~h information, there was no need that the copy of that order must be served on him.

The third ooint urged raises a question of fact. According to the Petitioner. he was never civen this informati<"' m1'1 his si1matures were taken on a blank sheet of pa~er. This arou-ment is ba•Pd on assertion of wrong facts. WP. ha.v~ s••n the oricinal order is<ued under the proviso to section R. At the time when the information in pursuance of it was given to the petitioner, an endorsement was made on the back rn Urdu recit-ing toe ract that tile pe!liioner baa been informed as directed and it· was under tills endorsement that the siiµiature of. the petitioner was ta...en. The petitioner's signature is 'also in Urdu and the hanawr.ung shows that he can read and write Urdu very well. Smee .he signed under the endorsement, it fs. clear that he must have known what" he ·was signing and his assertion in the present ll cas~ that .lii.s signi!tures were taken on a blank paper is totally false.

The fourth point urged was that the District Magistrate, when maKing the order for detention, .. did not apply his mind, because his order does not mention the existence of. any materials which. could have impelled him to ni.ake the order of detention of the petitioner. In the order made under section 3 of the Act, die existence of materia~·.does-not require to be mentioned. The order recites ll!at the Distrjct Magistrate is satisfied that it is necessary to detain the petitioner with a view to preventing him from acting-in a mahner prejudicial to the security of the State. That this satisfaction was based on materials is further clarified by the order of the Government confirming the/detention which mentions that the District Magistrate had, with.qlls report, sent to the .. Government· the grounds on which the order had been made as well as well as other particulars having bearing on tl:!_e. matter. It is, therefore, not a case where the D,istrict Magistrate-can be held to have_ passed an order without any material at alL ' . Tho . fifth point urged is that, in the order of detention, the TJistrict Magistrate has, when giving t_he reason for making the )rder, stated that he is satisfied that it is neccssa1:y to do so with 11 view to preventing tht petitioner from acting in "a" manner prejudicial to the security.of. the State, w~le section 3 -0f the . Act mentions that .such an order can be . thi1de, if the Govern-mept or the District ""Magistrate is satisfied with respect to any person tha~ it is necessary· :o make the order with a view to pt'eventing him from. ·acting ;tl "any" manner prejudicial to the security of the State.· According to learned. counsel, the D,istrict Magistrate, by using the word "a" before the word "manner" instead of the word "any" as used in the statute, made an order which is out~ide the scope of the statute. The argument is clearly misconceived. The exptession "acting in any manner" used 'in-the Act clearly covers a'.:""case where the satisfaction of the District Magistrate ·is that t!le. person, in resoect of whom the order is goine; to· be made, is to be orevented from "a~ti?-g in a manner''· .prejudicial ·td the security of the State. '.fhe pomt raised has merely to be stated to b.~ rejected.

The sixth point argued was that, in the order containing the direction that the petitioner be informed that it is not in public interest to communicate the grounds. of detention to him, the District Magistrate has referred to the petit:oner as one who "has been" detained, which shows that, on 9th May, 1970, when this order was made, the petitioner was already under detention, so that the plea of the\ petitioner that he was actuaily taken in custody earlier than 22nd May, 1970, is correct. Since there was no authority for earlier detention, his detention must be held to be illegal. It is true that the language used in the order und~r the proviso to section 8 is incorrect. It is clear that both the ord"1" of detention under section 3 and this direction under the proviso to section 8 were passed by ithe District Magistrate on the same day one after the other. The proviso to section 8 pe1J11its the District Magistrate to make the direction at the same time when the order of detention is made under section 3, and this is what the District Magistrate actually did. He appears to have used tlie expression "has been" by mistake. It has been established by affidavits filed on behalf of the Government that, in pursuance of the order of detention dated 9th Mav, 1970, the petitioner was actually• detained on 22nd May. 1970 and not before the order containing the direc-tion under the proviso to section 8 was issued. The use of this incorrect expression does not implv that the detention was illegal.

"""('" ---, The seventh and the last point urged was that, under the

proviso to section 8 of the Act, non-communication of the grounds of detention is permissible if communication; of grounds is against public;_ interest, while, in the direction made by the district Magistrate, he has stated that it is against the interests of the security of the State. This is mere quibbling. Any action in the interest of the security of the State is clearly in public interest, so that the direction was fully covered by the proviso to section 8.

None of the· grounds ur~ed, thus, has any force. The deten-tion of the petitioner is valid. The petition is dismissed.

ORIGINAL JURISDICTION : Writ Petition No. 384 of 1970. Petition u.nder Art. 32 of the Constitution of India for a writ in the nature of habeas corpus.

S, Lakshminarasu, for the petitioner.

R. N. Sachthey, for the respondent.

The Judgment of the Court has delivered by