Abdul Gani Dar v. State And Others

1. The detenue, Abdul Gani Dar has filed this petition through Ab. Aziz Dar, who claims to be his well wisher for quashing the detention as also the grounds of detention of the detenue dated 30-3-1986 ordered by the District Magistrate Anantnag.

2. It is asserted in the petition that he was arrested in the first week of March, 1986 by Police Station Kulgam. Petitioner was granted bail but still he was not released from custody because in the meantime the impugned detention order dated 30-3-1986 was issued. The grounds of detention are said to have been served on the detenue through respondents No. 2, but these were without annexures 3- 4 & 5. Detenue is said to have requested the petitioner to file a writ or to take appropriate steps for secur­ing the release of the detenue. The detention is challenged on the following grounds:

(i) That the allegations levelled against the petitioner in the grounds of detention are said to be fabricated. It is stated that the incidents which are narrated in the grounds of detention were due to the failure of respondent No. 1 to prevent the situation from turning ugly and for the slackness of respondent No. 1 the detenue is made a scapegoat;

(ii) That alongwith the grounds of detention copies of FIRs were not supplied to the detenue in the absence of copies of FIRs petitioner was prevented from making an effective representation;

(iii) That the order of detention was passed when the petitioner was already in Judicial Lock up and the respondent No, 1 has not made mention of this fact. This would obviously show non-application of mind on the part of the Detain­ing authority;

(iv) That the incidents which are narrated in the grounds of detention apart from being baseless and false would pertain to law and order and not to public order. Therefore deten­tion cannot be sustained on the said incidents.

(v) That there is no satisfaction recorded about the detention of the detenue, therefore also the detention of the detenue is bad;

(vi) That the grounds of detention are vague, indefinite and detenue on the said vague grounds was not in a position to make a representation.

2. These allegations have been denied by the respondents. Respon­dent, the Detaining authority has stated that besides grounds of detention other information which was relied upon was also furnished to the detenue and information was given to the detenue of the grounds well in time. Copies of the FIRs were also supplied to him and detention order was also served on the detenue.

3. During the course of arguments Mr. Hagroo appearing for the detenue submitted that if copies of the FIRs were supplied to the detenue, respondent No. 2 alone was in a Position to say so. He offered to file a supplementary affidavit to the effect that the detenue was not supplied copies of FIRs which are mentioned in paras 3, 4 & 5 of the grounds of detention. He was permitted to do so and respondent No. 2 was also given an opportunity to rebut the allegations contained in the affidavit. Accordingly detenue filed an affidavit on 26-6-1986 and Superintendent Central Jail filed the affidavit in rebuttal to the fresh affidavit filed by the detenue. In the supplementary affidavit the detnue has stated that he did not receive docu­ments mentioned in paras 3, 4, 5 of grounds of detention nor was he supplied with the copy of the detention order. The documents in para 3, 4, 5 of the grounds of detention are FIRs under which some criminal cases are regis­tered against the detenue in respect of the incidents which are mentioned in those grounds. In reply the Superintendent Central Jail has stated that the detenue was supplied with the grounds of detention as also FIRs in time. The documents which were supplied to the detenue were given to him against a proper receipt and the order of detention was read over to him in his language.

4. The learned Govt. Advocate has also produced the record of detention before me. There is a receipt of the detenue on the record of the detaining authority dated 1-4-1986 which purports to show that the detenue was given grounds of detention, FIRs as also detention order through one Shri R. K. Pandita, Assistant Superintendent Central Jail on 1-4-1936, The contents of the grounds of detention as also FIRs are reported to have been read over to him and explained to him in English/Urdu, Kashmiri language which the detenue is conversant with. He was also informed that he could make a respresentation.

5 On the basis of pleadings of the parties and on the basis of the points raised, it is to be seen whether the detention of the detenue suffers from any illegality and whether that illegality would vitiate the order of detention. It is therefore necessary to reproduce the grounds of detention to examine the validity of the detention of the detenue.

(1) On 18-2-1986 you incited the muslims in village Quimoh, Datiev Bogund, Wanpoh and other adjoining areas that they should kill the Hindus living in these villages as Muslims were massacered in Jammu city by the Hindus in the recent past. You also instigated them to loot the houses of the members of Hindu community, set them ablaze and cons­tructed mosques at these places. You incited the Muslim youth in these villages that they must let loose terror against the members of minority community so that they leave the State of Jammu and Kashmir.

(2) On 19-2-1986 you instigated the muslims in Quimoh Wanpoh, Danev, Bogund, Khudwani and others villages of Tehsii Kulgam by telling them that the judgment delivered in Babri Masjid case was meant to deprive the Muslims of their ' places of worship and they should attack the temples and construct mosques at these places. You were further seen inflaming the sentiments of muslims there that there brethern were being massacered in other parts of the country by-Hindus and therefore they must take revenge against Hindus here.

(3) On 20-2-1986 you alongwith your fellow companions namely Mohd. Maqbool Guroo, Habibullah Peer, Mohd. Ramzan Mala residents of Qaimoh, Ab. Rahim Malla r/o Khudwani Mohd. Ayub Dar, Ab. Gani Dar residents of Redwani and others assembled in village Wanpch Tehsil Kulgam armed with lathies and other deadly weapons and set on fire two temples in the said village besides looted property from the houses of the members of Hindu community. Some houses of Hindus were set on fire. Regarding this incident a case under FIR No. 29/86 u/s 436, 395, 295, 148, 427, 149/RpC has been registered at Police Station Kulgam against you and your associates. Copy of the FIR is attached.

(4) On 20-2-1986 you and your colleagues namely Mohd. Maqbool Guroo, Mohd. Ram/an Malla, Ab. Gani Dar, Mohd. Ayub Dar, Habib Ullah Peer and others again assem­bled at village Denev Bogund Teh. Kulgam armed with lathies and other deadly weapons and set ablaze one temple known as Shivalaji temple alongwith residential houses of Janki Nath that, Keshov Nath, Moti Lal Shamboo Nath and Dwarika Nath of village Danov Bogund. You and your associates looted cash and ornaments from the houses of the members of the minority community in this village. Regarding this incident a case under FIR No. 28/86 u/s 436 395, 148 427, 149/RPC has been registered at P/S Kulgam. Copy of the FIR is attached.

(5) On 20-2-1986 you and your associates pelted stones upon the house of Shri Vesh Nath son of Madev Ram r/o Wanpoh and caused damage to the said house. You and your associ­ates also forcibly entered the house of said Vesh Nath Bhat and looted cash and other valuables from the said house. Regarding this incident a case under FIR 12/86 u/s 336, 395, 148, 149, 448/RPC has been registered at P/s Qazigund, Copy of the FIR is enclosed.

6. The allegations contained in the grounds of detention are said to be fabricated and bad and the communal clash which is said to have taken place in some parts of the District Anantnag was due to the administrative failure. Detenues involvement in such incidents, is denied. Mr. Hagroo wants this court to believe that the grounds of detention are based on incorrect facts.

7. I am afraid I cannot go into the correctness or otherwise of the facts which are mentioned in the grounds of detention. Correctness or otherwise of the grounds of detention are beyond judicial purview. As to whether a particular incident had taken place or not cannot be decided 'm the writ petition, nor can anything be said about the existence of a fact which is mentioned in the grounds of detention. It is not permissible for this court to hold that incidents mentioned in the grounds of detention are fabricated or manipulated by the police as is suggested. The facts which are revealed from the grounds of detention are to be believed as correct, the subjective satisfaction of the detaining authority which he has drawn from a particular set of facts may be scrutinized but the set of facts on which he bases the subjective satisfaction cannot be said to be untrue or fabricated merely because the petitioner has said so in his affidavit. Detenue's contention that clashes mentioned in the grounds of detention are due to administrative failure for which petitioner was made scapegoat is equally untenable inasmuch as this court is not concerned at all in its writ jurisdiction with the examination of the facts given in the grounds of detention. Consequently it would not be for this courts to say as to whether there was administrative failure and communal clashes mentioned in the grounds of detention were to be attributed to that failure, This may be possible for the court of Enquiry, if constituted, to look into the causes of the clashes which had taken place in February, 1986 in some parts of Anantnag District. Facts mentioned in the grounds of detention therefore cannot be said to be incorrect, doubtful or baseless as suggested because that will not be within the jurisdiction of this court.

8. The second contention of Mr. Hagroo that copies of the FIRs were not supplied to the detenue appears to be attractive because in the absence of copies of FIRs it was, impossible for the detenue to make an effective representation in terms of Art, 22(5) of the Constitution But on a deeper consideration this allegation also seems to be incorrect. Material in this regard is brought on record by Mr. Hagroo himself. He volunteered to produce an affidavit of the detenue to the that documents mentioned in the 'paras 3, 4 & 5 in the grounds of detention which are FIRs said to have been registered in connection with the commission of cognizable offences on the part of the detenue by the Police concerned, were not supplied to him by the Superintendent Central Jail. In reply thereto Superintendent Central Jail has filed an affidavit and has expressly stated that copies were given to the detenue and these copies are said to be copies of FIRs mentioned in the grounds of detention. In view of this positive assertion which is supported by the record of the District Magistrate: which I have perused, it cannot be said that grounds of the detention or the copies and the order of detention was not supplied to the detenue. On the other hand there is ample proof on record in the form of affidavit of the respondent No. 2 as also record of the District Magistrate which contains a receipt purported to have been executed by the detenue in lieu of receipt of documents, which proves beyond doubt that detenue was given the necessary material alongwith the grounds of detention and he was not prevented in any manner to file an effective representation, if he chose to make one. (Non-supply of a material would have definitely effected the petitioner's fundamental rights, but in this case the entire material which was required to be furnished to the detenue has been furni­shed to him Therefore none of his rights is effected because the allegations of non-supply of material is not proved.

9. Another contention raised is that the detenue was in judicial lock up when the order of detention was served on him. This fact was not mentioned in the grounds of detention or in the order of detention. According to Mr. Hagroo this would indicate lack of application of mind on the part of the detaining authority. On perusal of the grounds of detention it is revealed that the detaining authority has mentioned in the grounds of detention that the detenue was in police custody. The last line of the grounds of detention reads as under:-

"You are already in police custody."

10. Mr. Hagroo submits that the detenue was in judicial lock up therefore the detaining authority should have specifically stated that the detenue was in judicial custody. By saying that he was in police custody, it cannot be said that requirement of law was complied with.

The detaining authority has in so many words stated that the detenue was in police custody. Whether he was in police custody or judicial lock up, the fact remains that he was not a free man when the order of deten­tion was served on him and he was in prison. A person already in prison in connection with cognizable offence can be detained under the Public Safety Act, but in that case the detaining authority must indicate his awareness about the detenue being in person at the time of issuance of, the order of detention. This fact is mentioned by the detaining authority. Therefore it cannot be said that detaining authority has failed to indicate the awareness about the detenue being in prison at the time of the issuance of detention order it cannot be said that the detaining authority has not applied its mind as is suggested. The detaining authority was aware that the detenue was in prison and he has indicated that awareness in the grounds of detention. That is all what is necessary to be indicated in such cases by the detaining authority. Therefore the contention of Hagroo in this regard cannot be accepted

11. Mr. Hagroo has next contended that the incidents which are mentioned in the grounds of detention relate to the law and order and not to the Public order. Public order according to Mr. Hagroo is something which does not fall within the ambit of law and order. According to him the detenue is said to have committed some cognizable offences for which cases are registered against him. Therefore, he can be said to have disturbed law and order and not public order.

Definition of public order is not given in the Public Safety Act. But the Act has assigned a meaning to the term 'acting in any manner prejudicial to the maintenance of public order' and it means;

(i) promoting, propagating, or attempting to create, feelings of enemity or hatred or disharmony on grounds of religion, race, caste, community, or region;

(ii) making preparations for using, or attempting to use, 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."

So if activity of a citizen falls within any of the aforesaid mischief, the detaining authority will be within its powers to say that the detenuc was acting in manner prejudicial to the maintenance of public order,

12. According to Mr. Khan activities of the detenue were prejudicial to the maintenance of public order inasmuch as he was promoting, propa­gating or attempting to create enemity or hatred and disharmony on grounds or religion ard community. The detenue has instigated, incited and provoked his associates to use force to disturb the public order and has indulged in commission of mischief which mischief has disturbed the public order, therefore detenue's action will be held to have disturbed the public order and not merely the law and order.

In Ram Manohar Lohia v. The State of Bihar reported in AIR 1966 S. C. 740, the term 'Public order' and 'law and order' was sought to be distinguished from each other. It was observed that public order if disturbed must lead to public disorder. Every breach of the peace does not lead to public disorder for instance when two drunkards quarrel and light, there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be said to have-dis­turbed the public order. The contravention of law always affect order but before it can be said to affect public order, it must affect the comm­unity or public at large.

13. If even tempo of public life is disturbed and there are communal clashes coupled with looting and arson and desecration of religious places, it can not be merely law and order problem, but it has the effect of dis­turbing even tempo of public life and may give rise to large scale public disorder. The magnitude of disorder and its effect and result are also factors which are to be taken into consideration for judging whether a particular incident is relateable to law and order or public order In Ram Manohar Lohia's case (Supra) under the Defence of India Rules, detaining authority had the power to detain or order detention of a person for acting in a manner prejudicial to the public order. The detaining authority in that case had used the term activities prejudice to the maintenance of law and order. In that context the Supreme Court drew the distinction between the two. It was further observed that strict compliance with the expressions used in the preventive detention laws is required to be observed and if the District Magistrate used 'disturbance of law and order' the detention cannot be said to have been ordered for disturbing the public order because the two terms are distinct with each other.

14. In this case as to whether the activities were to the prejudice of public order or law and order has to be seen from the facts mentioned in the grounds of detention and in the context of the meaning assigned by the legislature to the term 'prejudicial to the maintenance of public order. The detenue after having made the preparation is said to have indulged in -loot and arson of the other community and has desecrated the religi­ous places. Therefore, it cannot be said that the allegations pertain only to law and order and not to the Public order. The allegations contained in the grounds of detention would certainly fall within the purview of section 3 (b) (i), ii. iii and iv of the Public Safety Act.

15. In Masood Alam etc. Vs. Union of India and ors AIR 1973: S C. 897, detention was ordered under the maintenance of Internal Security Act and the same was challenged before the Supreme Court. Contention was raised before the Supreme Court that preventive detention of a person for any reason short of imminent likelihood of his acting in a prejudicial manner must be considered to be an invasion on the fundamental rights of a citizen. This argument was repelled by the Supreme Court in the following words:

"Our constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic. But the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedoms and personal liberty is designed to grow and flourish."

16. If the District Magistrate in the present case on a given set of facts has assumed satisfaction that detenue has acted in a manner preju­dicial to the maintenance of public order, he was within his rights to detain the detenue. The activities of the detenue as mentioned in grounds Nos. 3, 4, 5 (supra) relate to the setting fire to two temples at village Wanpoh and looting the property from the houses of the members of the minority community and setting on fire some houses for which FIRs under various sections of RPC was registered. On the same date detenue has set ablaze a temple at another village as also burnt down houses of some persons who are named in the grounds of detention for which also cases are register­ed and on the same day they are said to have looted property in another houses of persons belonging to minority community. These are the positive acts which are attributed to the detenue on 20-2-1986. Allegations are definite and certain. Description of each incident is given minutely by the detaining authority. The result of detenue's actions is positively disturbance of even tempo of public life, A particular community as whole seems to have been made target and there has been looting, arson of the religious places and of the property of a particular community. These incidents cannot therefore be said to be incidents relating to law and order only. It is true that they are basically incidents which are being dealt with under the normal law as well, but since it must have disturbed even tempo of public life and created disorder, of a large scale, therefore the distur­bances are relateable to the public order and it is rightly said by the detaining authority that the detenue has acted in a manner prejudicial to the maintenance of public order. Merely because the detenue can be dealt with under the ordinary law also does not detract from the authority of the detaining authority to detain the detenue if he is satisfied and if the circumstances and facts so warrant that the detenue has acted in a manner prejudicial to the public order. The mischief by fire itself is said to be an incident which is relateable to disturbance of public order. The intention of the legislature has been clear in this regard and that is expressly reflected in section 3 of the Public Safety Act.

17. The detaining authority has recorded its satisfaction which is revealed from the original record which was placed before me by Mr. Khan, On the basis of grounds of detention the detaining authority is to be satisfied that the detention of the detenue was necessary and required for preventing him to act in a manner prejudicial to the maintenance of public order. The detaining authority has after assuming satisfaction declared that the detention of the detenue was required for maintenance of public order. Therefore contention of Mr. Hagroo does not appear correct.

18. It is stated that the grounds of detention are vague and indefi­nite. However no vagueness was pointed out during the course of arguments, Detenue and his associates are named, the places of their wrath are also named, the houses which they have looted are identified. Religious places which they have desecrated are identified and the houses of some people belonging to other community which have been set on fire by the detenue and his associates are also mentioned in unambiguous term. Therefore no vagueness can be attributed to the grounds of detention. On the basis of grounds of detention and on the basis of information which was conveyed to him, the detenue was enabled to make an effective representation. None of his rights on account of vagueness is effected. The contention is therefore over ruled.

19. From the totality of the circumstances and from the record available before me, I am convinced that the detention of the detenue is ordered because in the opinion of the detaining authority his activities were prejudicial to the maintenance of public order. The detaining autho­rity has complied with the requirements of law. It is true that the petitioner's liberty is taken away without trial, but that seems to have been required for the maintenance of public order and for securing certain objectives. Moreover the detention if ordered according to the procedure established by law is to be maintained. A citizens liberty cannot be taken away in violation of the procedure established by law. Since in this case due pro­cedure was followed by the detaining authority and provisions of law were observed, grounds of detention are also germane to the object which is sought to be achieved, therefore the detention of the detenue cannot be said to be bad.

The result is that the writ petition is dismissed.

Srinagar

July 11th, 1986

Sd/- Hon'ble Bhat J"