ALI MOHAMMAD MIR Vs. STATE

JUDGEMENT

(1.) The detention order passed under S.8 of the Jammu and Kashmir Public Safety Act, (hereinafter referred to as "the Act"), on 31-1-1984, ordering the detention of Shri Abdul Razak Mir alias Bichroo son of Haji Amir Mir, resident of Bichroo Kulgam, District Anantnag, is challenged in this writ petition as being unconstitutional and illegal. Prayer is also made for the release of the detenu through the medium of this petition.

(2.) The detaining authority, the District Magistrate Anantnag, has ordered the detention of the detenu on the grounds which reproduced hereinbelow and are annexed with the detention order :

(3.) The challenge is made to the detention order on the ground of vagueness of the grounds of detention. The grounds of detention have a preamble and then charges against the detenu are listed. The preamble cannot be separated from the grounds of detention. In fact ground of detention listed at serial Nos.1 to 5 flow from the preamble. Therefore any vagueness in the preamble is to be considered in favour of the detenu. In the preamble it is alleged by the detaining authority that the detenu was worker of Jamat-i-Islamia, a party which is anti-national in character and which challenges accession of the Jammu and Kashmir State to the Union of India, and preaches accession of the State to Pakistan. Because of these things, the party is a communal organization and it does not believe in democracy and secularism and wants to establish "Nizam-i-Mustafa" in the State. The detenu is said to be a leading worker who takes part in the processions and "Ijtimahas". I have enquired during the course of arguments from the learned Chief Govt. Advocate, as to whether there was any order issued by the Government banning Jamat-i-Islamia as anti-national in character. He conceded that no such order has been issued. In the absence of any declaration made by the Government, it cannot be said as to in what manner the District Magistrate has styled "Jamat-i-Islamia" as anti-national. The detenu's involvement with the said party is confined to opposing accession of the State to India. The effect of these activities of the petitioner are not spelt out. The detention of the detenu was ordered for he was considered as acting in a manner prejudicial to the security of the State. Section 8 of the Act has defined the term "acting in any manner prejudicial to the security of the State". It means making preparations for using or attempting to use or instigating, inciting, provocating or otherwise abetting the use of force to overthrow or overawe the Government established by law in the State. No other meaning can be given to the term "acting in any manner prejudicial to the security of the State." This court has to interpret law and cannot make law. Therefore, from reading of S.8(3)(a) of the Act it is clear that the activities of a citizen must be calculated at over-throwing by use of force the Government established by law or overawe such Government by use of force. From the preamble of the order, it cannot be held that by being a member of Jamat-i-Islamia, detenu as a consequence must have used force to overawe or overthrow the Government by use of force. This cannot be inferred. This was to be spelt out by the detaining authority. Therefore, the preamble of the detention order, suffers from vagueness.