Jammu & Kashmir High Court
Abdul Rehim Bhat vs District Magistrate And Ors. on 11 October, 1971
Equivalent citations: 1972CRILJ1633
ORDER Mian Jalal-Ud-Din, J.
1. In this petition the petitioner seeks a writ of habeas corpus under Section 103 of the Constitution of Jammu and Kashmir directing the release from detention of Ghulam Mohd Bhat resident of Sopore.
2. It is averred in the petition that the said Ghulam Mohd Bhat was President of Co-operative Society which post he relinquished in the year 1970. Some local people grew inimical with him and they in collusion with the Station House Officer of Police Station Sopore made false reports against him and on the basis of these reports respondent No. 1 passed an order of detention against the said Ghulam Mohd Bhat under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964. The impugned order is sought to be quashed as being violative of Articles 21 and 14 of the Constitution of India. The respondent No. 1 it is averred, did not apply his mind to the fact of the cage. He did not verify the reports against the detenu. There was no basis or material on the basis of which the respondent No. 1 could have declared the conduct of the detenu to be such as to be prejudicial to the maintenance of public order. No grounds of order were served on the detenu nor was the order served in accordance with the provisions of Jammu and Kashmir Preventive Detention Act of 1964. The petition has been made by one Abdul Rehman Bhat who has sworn in an affidavit in support of the petition.
3. Shri S. S. Razvi District Magistrate. Baramulla has filed counter affidavit in which he has averred that the detention order of Ghulam Mohd Bhat was issued after he was satisfied upon the materials placed before him that with a view to prevent the said Ghulam Mohd Bhat from acting in a manner prejudicial to the maintenance of public order, it was necessary to detain him. The aforesaid detention order was forwarded by him for execution to the Station House Officer Police Station Sopore who in compliance thereto arrested the detenu on 16-4-71 and committed him to the Central Jail. Srinagar for detention therein. The fact of the above mentioned detention order together with the grounds of detention on which the order was made and all particulars having bearing on the matter was reported to the Government and the latter after considering the matter approved the said detention order (vide Government Order No. ISD-6719 of 1971 dated 1-5-71). The grounds of detention were communicated to the detenu under No. CON/11-12 dated 13-4-1971 and he Was informed that he was entitled to make a representation against the aforesaid order of detention to the Government. The detention order has been issued in the interest of maintenance of public order and for no other purpose. It is denied that there was any collusion between any interested Dersons and the Sub-Inspector of Police Station Sopore. to falsely make out a casp of detention against the petitioner.
4. Shri A. R. Khaiuria. Deputy Secretary to Government. Home Department, has also filed an affidavit in which it is mentioned that the Government after having fully considered the matter of detention approved the said detention order and that the order of detention of the District Magistrate as also the reports submitted by the District Magistrate and all other relevant and material facts were placed by the Government before the Advisory Board on 29-5-1971 as required by Section 10 of the Preventive Detention Act of 1964. But Shri Ghulam Mohd Bhat did not make any representation against the detention order in question.
5. There are also affidavits of Ghulam Ahmad War Station House Officer, Police Station Sopore and Radha Kishan Head Warder Central Jail. Srinagar. In the affidavit of the S. H. O. Police Station Sopore the deponent has averred that he in compliance with the order of the District Magistrate Baramulla arrested Shri Ghulam Mohd Bhat on 16th of April. 1971 and committed him to the Central Jail Srinagar on the same day. Before arresting the detenu he was given due notice of the detention order by reading out the contents to him in Kashmir and Urdu languages. Radha Kishan Head Warden has sworn in an affidavit to the effect that the detenu was detained in the Central Jail Srinagar on 16-4-71 when he was released on parole on 30-6-71. The order of parole was however cancelled by the Govt. and the detenu was directed to surrender himself to the Superintendent Central Jail. Srinagar and hp surrendered himself accordingly. The detenu was informed of the grounds of detention and he was told that he was entitled to make representation against the order of detention to the Government in token whereof the detenu affixed his signatures on the aforesaid communication.
6. I have heard the arguments in the case.
7. My attention is invited to the order of detention which reads as under:
ORDER No. PDA/DMB-1
dated 13-4-71
Whereas I. S. S. Rizyi. District Magistrate. Baramulla, am satisfied that with a view to preventing Ghulam Mohd Bhat S/o Ahad Bhat R/o Mohalla Himlina Sopore from acting in any manner prejudicial to the maintenance of public order if necessary so to do:
Now in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964. I, S. S. Rizvi District Magistrate Baramulla hereby direct that the said Ghulam Mohammad Bhat be detained in the Central Jail. Srinagar subject to such conditions as maintenance of discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenu Order. 1968.
Sd/- District Magistrate Baramulla.
Copy forwarded to:
1. Shri G. A. War. S. H. O. Police Station Sopore in duplicate for execution of the order as provided by Section 4 of the Jammu and Kashmir Preventive Detention Act, 1964. Notice of the order shall be given to Ghulam Mohammad Bhat by reading over the same to him and one copy duly executed, returned to this office.
x x x x x
x x x x x
Sd/- District Magistrate.
Baramulla.
8. The grounds of detention that have been served on the detenu however show that the detenu was detained because of his various subversive activities in the State. In the end the document reads as under:
And as such his remaining at large was fraught with potential danger to public peace and security of the State, it was necessary to detain him.
Sd/-District Magistrate.
Baramulla
9. Learned counsel for the petitioner has contended that in the order of detention it is mentioned that with a view to preventing the detenu from acting in the manner prejudicial to the maintenance of public order it was necessary to detain him. Whereas in the grounds it is mentioned that it was necessary to detain Ghulam Mohd Bhat because his remaining at large was fraught with potential danger to public peace and security of the State. It is submitted that there is inconsistency between the two i. e. the ground of detention recorded in the main order itself and the grounds supplied to the petitioner. It is only for the maintenance of public order and not for public peace that a person can be detained. The order does not show that the detenu was detained because his remaining at large constituted a threat to the security of the State. But this is mentioned in the grounds of detention itself. It is further submitted that the District Magistrate has not at all applied his mind to the case before him and he has mechanically drawn up the order without complying with the provisions of the Preventive Detention Act.
10. As against this the learned Deputy Advocate General appearing for the State has tried to justify the order on the ground that there was no inconsistency between the order of detention and the grounds furnished to the detenu. When the Distt. Magistrate said that the detenu's remaining at large was fraught with potential danger to the public peace and security of the State, it was only his conclusion and not the ground.
11. On a careful consideration of the matter I am of the view that the order of detention passed in the present case suffers from legal infirmity and must therefore, be set aside. The law relating to detention is a serious inroad on the liberty of an individual. It has often been observed that such law must be construed in the strict sense and so far as the individual whose liberty is affected by the order of detention is concerned the law must be liberally construed in his favour. Although it is the subjective satisfaction of the detaining authority and not the objective satisfaction upon which is found the order of detention and that this subjective satisfaction is not justifiable vet the Courts have to see if the law relating to detention has or has not been followed strictly. If it comes to the notice of the Court that there has been slightest lapse in observing the relevant provision of the law it will certainly strike down the order and order the release of the detenu. These are the principles that the Court of law has to keep in view while dealing with a case of habeas corpus. In AIR 1955 J & K 7. a Full Bench of this Court in the case of Hassam-Ud-Din Bandev v. State has observed that preventive detention is a serious inroad on civil liberties and as such any law which in any wav curtails civil liberties has to be very strictly construed. The Court has to see if the law as it is. has or has not been meticulously followed, and if it finds even a hair-breadth deviation made from the express provisions of law or a slight disregard of any direction given according to law it shall have no hesitation in declaring a detention under such circumstances quite illegal. This view was again reiterated and confirmed in AIR 1956 J&K 1 (2) (FB). The obligation that is cast on Courts in the matter of discharging their duty in habeas corpus matters has been succinctly brought out in Halsburv's Laws of England. It is profitable to reproduce the exact words as under:
In any matter involving the liberty of the subject the action of the Crown or its Ministers or officials is subject to the supervision and control of Judges on habeas corpus. The Judge owe a duty to safeguard the liberty of the subject not only to the subject of the Crown, but also to all persons within the Realm, who are under the protection of the crown regardless of the fact, whether they are alien friends or alien enemies.
12. It is this fact which makes the prerogative writ of the highest constitutional importance, it being a remedy available to the meanest subject. against the most powerful.
13. Bearing in mind the above mentioned principles it is to be seen whether the order of detention in the Present case has been passed in accordance with law. Under Section 3 of the Preventive Detention Act a person can inter alia be detained with a, view to prevent him from acting in any manner prejudicial to:
(i) the Security of the State:
(ii) the maintenance of public order: and
(iii) the maintenance of supplies and services essential to the community.
Before making an order under this section the detaining authority must be satisfied that it is necessary to detain such a person because his remaining at large is a danger to public order or to the security of the State or both or to essential services. In the instant case the detenu has been detained in order to prevent him from acting in any manner Prejudicial to the maintenance of public order. But in the grounds furnished to the detenu it is mentioned that the detenu's remaining at large was prejudicial to Public Peace and Security of the State. 'Public order is a comprehensive term. The Supreme Court has in . interpreted this expression as construing that state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established. Public peace or public safety is used as a party of the wider concept of public order Public peace, public order and security of the State are three distinct topics. 'Public peace' cannot be said to be the same thing as public order which is of wide connotation as observed by the Supreme Court. The detenu could not be detained on the ground that he was committing breach of the public peace. This is a vague ground. "Security of the State" as given in the list of grounds does not find place in the order of detention itself. The detenu has not been detained because of his remaining at large is a threat to the security of the State. 'Security of the State' is a much stronger ground than the ground of 'public order'. In the case of a man who is detained on the ground of threat to the security of the State the grounds need not be disclosed to him.
14. From all this it appears that the mind of the detaining authority was rather vacillating. He was not sure as to whether he was detaining the detenu on the eround of 'public order' or on the ground of 'public peace' or threat to the Security of the State. It is noteworthy to mention here that order of detention and grounds furnished to the detenu bear the same date. Rather I should say the latter has preceded the former. In . it has been observed that the around of preventive detention supplied to the detenu must not be vague. The Constitutional requirement that the grounds must not be vague must be satisfied with regard to each of the grounds communicated to the person detained and therefore even though one ground is vague and the other grounds are not vague, the detention is not in accordance with the procedure established by law and is. therefore, illegal.
15. In . Dr. Ram Manohar Lohia against whom the grounds of detention were that he was acting in a manner prejudicial to the Public Safety and maintenance of law and order was set at liberty on the ground that the ground was vague. It was held that it was doubtful whether "law and order" meant the same thing as 'public order. In these circumstances the only course open to the Court was to hold that the rules had not been strictly observed and that the order did not justify the detention. Sarkar J. as His Lordship then was speaking for the majority said that where a man could be deprived of his liberty under rule by the simple process of the making of an order he could only be so deprived if the order was according to law. Strict compliance with the letter of rule was the essence of the matter. The Defense of India Rules drastically interfered with the personal liberty of the people and Courts are therefore prevented from going behind the order passed under the rules. In these circumstances it will be. legitimate to require strict observance of the rules and if there is any doubt left whether rules have been strictly observed, that doubt must be resolved in favour of the detenu. That is precisely the case before us. We are left in doubt as to whether the detenu has been detained on the around that his remaining at large was prejudicial to the maintenance of the public order or on the vague and irrelevant ground that it was for the purpose of preventing him from committing breach of the public peace or that his presence constituted a threat to the security of the State. This doubt as observed by the Supreme Court is to be resolved in favour of the subject detenu.
16. Again. I find that the order of detention has been addressed to the Station House Officer. Rule 4. P. D. Act requires that the detention order is to be executed in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure. While dealing with a case of detention a Full Bench of this Court in AIR 1956 J & K 1 (supra) did not approve of the word "S. H. O." to have been recorded in the endorsement of a detention order. It was observed by the late Justice Kalama that the order of detention sent for execution to an officer who is styled as S. H. O. was to an officer who was unknown to the Code of Criminal Procedure. This again appears to be a mistake on the face of the detention order relating to its execution in the case before us.
17. In my opinion for the reasons mentioned above I would hold that the order of detention of the detenu is not in accordance with law and must, therefore be set aside.
18. For the foregoing reasons I would, therefore, allow this petition and order that the detenu be set at liberty forthwith.