A K HANIF Vs. STATE

JUDGEMENT

(1.) FAYAZ Ahamd Sheikh, detenue has been detained under the orders of District Magistrate Anantnag, issued under No: 127 - 32/ST/85 dated 11.4.1985. under the provision of the J&K Public Safely Act (hereinafter referred to as the Act. The petitioner who claims himself to be interested in the life and liberty of the detenue has fried this petition for quashing the said order on the ground that the provisions of the Act as amended by the J&K Public Safety (Amendment) Act. 1985, are ultra vires the Constitution and also the grounds of detention are vague and irrelevant,

(2.) THE grounds of detention as served upon the detenue read as follows : "You are a staunch worker of Jamailt ul -tulba an organisation which is anti national in character. Presently you are the general secretary of the organisation for district Anantnag. The leaders of this organisation, including you openly preach cession and say that the State of Jammu and Kashmir should become a part of Pakistan. They openly and publicity challenge the accession of the State with Indian Union and they also say that the people of the State had yet to decide their fate as to whether they wanted to go with India or Pakistan which can be achieved only through an impartial plebiscite. You actively participated in your party meetings and deliver speeches which have a tendency of creating hatred, enmity and disharmony among the muslims and hindus on the basis of religion, caste and region 1) On 2 -2 -1985 a meeting of the workers of Jamait -ul -tulba under the chairmanship of Mohd Yousuf R/o Soibugh, Srinagar who is one of the important leaders of the party was held at the training centre (meant for important training to the members of the organisation as to how they should win the sympathies of the people) at yanipora Besides you, some other workers of the party, notably Gh Hassan Sheikh R/o. Tarigam, Nazir Ahmed Mir R/o. Harvhi, Mohd Isham Pandit S/p. Abdullah R/o. yaripora and others participated in the meeting, you delivered a speech on the occasion and said that it was resohed by you and your party to get rid off Indian Government. You also said that the people of Kashmir were denied that right as to whether they would go with India or Pakistan and the Indian Government had let losse rein of terror on them. In view of the fact, you further said that Kashmir was predominantly populated by muslims, we must have an Islamic Government here. You further said that the Constitution of India was not acceptable to the people of the State which has been made applicable to the State against the wishes of the people. You said that the youth of Kashmir should unite together so that they achieve independence from India. You also said that the muslims were being massacred in other States of India by Hindus. Highly objectionable and anti -national slogans like Indian dogs go back Hands off Kashmir were raised in the meeting and you also were seen raising these slogans. 2) During the right of 7/8.2.1985 a meeting of Jamait -ul -tuiba under the chairmanship of Gh. Hassan Sheikh R/o. Yarigam was held at Zangalpora. Mohd Yousuf R/o. Soibugh, a top ranking leader of your organisation was specially invited on the occasion. About 200/250 workers of your party participated in the meeting. On this occasion also you delivered a speech and said that you and your party had resolved to fight like Palestinian mujahids and achieve their independence from India. You further said that some :traitors of Jammu and Kashmir had acceded of India for their personal gains. you also said that the Constitution of India was India anti -Islamic and therefore it was not: acceptable to the people of the State. You further said that the Indian Govt. had, occupied the territory of the State by force and against the wishes of the people. On 13 -2 -1985 yet another meeting of the workers of Jamait -Ul -tulba under your chairmanship was held at your house situated in Lazbal, Anantnag, about 15/16 workers of your party participated in the meeting. Addressing the participants, you, said1 -tha.t they should go Mom village to village and prepare the people to fight for their freedom from India. You further said that the, Indian Govt. was bent upon to crush the Kashmir nation. You -also said that the muslims of Kashmir were no longer prepared to bear the hardships of Indian Government. You went on to say that you and your party had resolved to establish Islamic Government in the State of Jammu and Kashmir and they had further resolved never to accept the Constitution of India Some so called leaders of Kashmir, you further said who were in fact traitors had acceded to India against the wishes of the people of the State. You impressed upon the participants that they should make their folds strong and be prepared for any sort of sacrifice. Highly objectionable slogans and anti national slogans like Indian dogs go back, we want Pakistan Pakistan Zindabad etc. were raised after the contusion of the meeting and

(3.) ON .5 -3 -1985 one more meeting of your party was held under your chairmanship in your house situated at Mohalla Labral, Anantnag. About 14/15 workers of your party -participated in, the meeting. Among others, one Iqbal Bavtoo S/o Sonaullah Ravtoo R/o Kadipora, Anantnag, Ghularo Dar S/o. Habib R/o. Khanabal, Anantnag, Naba Ganai R/o. Ladar -marito participated - in the meeting. You delivered a speech on this occasion also. You instigated -the participants that they should prepare the people of the State to rise in revolt against the Govt. of India because the people of the State were never prepared to remain with India. You again challenged the accession of the State of Jammu and Kashmir with the Indian Union and Said that being a muslim State, the people .wanted to go with Pakistan. You impressed upon the - participants that they should work hard and enlist the support of masses. You further said that number of Mujahids who wanted freedom from India were rotting in jails and also said that the Indian Government was treating the State as its colony and the people as their slaves. Highly objectionable and anti - national slogans like Pakistan Zindabad, we want Pakistan, Indian dogs go back etc. were raised in the meeting and you were also seen raising these slongans. From the aforesaid facts gathered against you, from time to time it is crystal clear that your activities are highly prejudicial to the maintenance of public order in District Anantnag as you have been instigating others for open Sedition against the duly Constitutional government. It is, therefore, considered necessary to detain you under the Provisions of Jammu and Kashmir Public Safety Act detention warrants to this effect have been issued against you separately". Learned counsel for the petitioner sought permission to give up the ground of challenge in regard to the vires of Sec -10 A of the Amended Act which permission was granted by Division Bench of this court on May 29.1985. He has now referred to the grounds of detention, which according to him, are vague and the same do not enable the detune to make effective representation within the meaning of Article 22 of the Constitution of India, Learned Govt. Advocate has, on the other hand, contended that grounds 3, 2& 4 of the grounds of detention clearly bring the case of the detenue within the orbit of Sec. 8 of the Act and according to him, the other grounds depict the conduct of the detenue whose activities are menace to the society and prejudicial to the maintenance of public order. The detention of the detnne has been directed 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 Sec. 8 of the Act and it reads as follows: - " (3) for the purpose of sub -section (1) - (a) "acting in any manner prejudicial to the security of the State" means making preparations for using, or attempting to use, or using or instigating, provoking or otherwise abetting the use of force -, to overthrow or over -awe the Govt. established by law in the State : (b) "Acting in any manner prejudicial to the maintenance of Public order" means - (i) Promoting, propagating or attempting to create feeling 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 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; ii) 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, or otherwise abetting the commission of an effence 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". Section10 -A of the Amended Act provides that where person has been detained in pursuance of an order of detention under section 8 of the Act which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be termed to be invalid or inoperative merely because ore or some of the grounds is/an vague, no existent, no relevant, nor connected or invalid for any other reason whatsoever Article 22 of the Constitution of India confers two rights upon the detenues, namely, first: a right to be informed of the grounds on which the order of detention has been made and, secondly, be afforded the earliest opportunity to make a representation against the order. It is nowhere stated in the petition that the grounds of detention were not served upon the detenue at the earliest. There K however, assertion made in the petition that the detenue was unable to make effect representation but how it happened is missing from the challenge made in the petition. It, therefore, cannot be said that the provisions of Article 22 of the Constitution have been violated in the present case.