ZAFAR ULLAH Vs. STATE

JUDGEMENT

(1.) THE nine Habeas Corpus Petitions, of which the number and titles are quoted above arises out of the same set of facts and on identical grounds. The petitioners have been detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called the Act). The orders impugned are passed by District Magistrate, Doda in seriatim as Order Noâ„¢s: 3/85 dated 18 -9 -85 about Zafar Ullah, 2/85 dated 18 -9 -85 against Akhtar Hussain, 5/85 dated 18 -9 -85 against Abdul Latif, 4/85 dated 18 -9 -85 against Abdul Rashid Mattoo, 7/85 dated 18 -9 -85 against Tariq Hupsain (Ahmad), 8/85 dated 18 -9 -85 against Javed Ahmad Umran, 1/85 dated 18 -9 -85 against Mohd Ashraf, 9/85 dated 18 -9 -85 against Karamat Ullaha, and 6/85 dated 18 -1985 against Ghulam Ahmad, all residents of Doda. All the above nine petitions were heard together and being based on the same incident are hereby disposed of by a single order.

(2.) THE petitioners have challenged the orders of detention passed under Section 8 of the Act on several grounds including the in -fraction of the provisions of Articles 19 and 22(5) of the Constitution of India in these petitions filed under Section 103 of the State Constitution read with Article 226 of the Constitution of India praying for a Writ of Certiorari to quash their orders of detention. The orders are also challenged on the grounds of malafides. Briefly stated all the petitioners were arrested in F. I. R. No. 101 of 1985, a copy of which is annexed with the petition as Annexure P -3 on 20 -8 -1985 n offences charged against them under Sections 153 -A/124/ 452/332/147/148/149 of the R. P. C. Section 13 of the Unlawful Activities Act and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 19S5 registered at Police Station, Doda. It is not also disputed that at the time .when the impugned orders in these petitions under Section 8 of the Act were passed on 18 -9 -1985, they were all in Jail. After their arrest on 20 -8 -1985 they were sent to Jammu and lodged in the Interrogation Centre. They all applied for bail in the Court of 1st Additional Sessions Judge, Jammu. It is also alleged in the petitions that their bail applications were not considered by the 1st Additional Sessions Judge because the offences alleged against them also included the offences under Section 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985. They consequently moved the Honble High Court for bail, as the designated Courts envisaged under the said Act were not constituted by the State Government despite extension of the Act to the State, the matter of bail, which came before a Single Judge of this Court before 18 -9 -1985 was referred by him because of the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985 referred the matter for order by a larger Bench, which was placed before a Division Bench of this Court. It is submitted that as a camouflage in order to deprive the petitioners of their right to continue the said proceedings, the respondents with a malaftde intention by way of vindication passed the detention orders ante -dated, which are liable to be quashed, The contentions finds support from the fact that the orders which has been passed on 18 -9 -1985 which was communicated to the arresting authorities on 19 -9 -1985 despite the fact that all the petitioners were already in Jail under arrest were arrested by Sub -Inspector, Police Station. Doda Mr. Mohan Lal Razdan under the directions of the Superintendent of Police, Doda on 27 -9 -1985. The grounds of detention were served on the petitioners on 30 -9 -1985. It is submitted by the learned counsel for the petitioners that the detention of the petitioners under the above quoted circumstances on the very face of the grounds of detention and the orders passed are based on malafides, the grounds are vague and orders suffers from in -firmities and also indicative of the non -application of mind by the District Magistrate. The materials on the basis of which the orders are passed have also not been supplied to the detenues. The orders are completely based on Dossier submitted by the Superintendent of Police, Doda to the District Magistrate, of which the copies were net supplied to the petitioners. Regarding vagueness and the non -application of mind number of author ties of the Honble -Supreme Court End of this Court have been cied by the learned counsel for the petitioners. Before dealing with the authorities, it will be convenient to quote in brief the grounds of detention supplied to the petitioners by the District Magistrate, which are as follows : -

(3.) LEARNED counsel for the respondents by contesting the petitions in reply filed the counter affidavits of Mr. M. I. Khandey, District Magistrate, Doda, who passed the orders, of G. M. Malik, Superintendent, Central Jail, Jammu, of Mohan Lal Razdan, Su -Inspector Police, Police Station, Doda and an additional affidavit of Mr. M. I. Khandey, District Magistrate, Doda for correction of a word in paragraph No. 1 of the counter affidavit filled by him and also the affidavit of Mr. Kesho Parkash, Additional Secretary to Government, Home Department, Jammu, who has stated about the communication of the orders, approval of the same by the Government on 25 -9 -1985 and submission of the relevant record to the Advisory Board constituted under Section 14 of the Act on 8 -10 -1985. Learned counsel for the respondents further submitted with greet vehemence that the petitions at present are premature, as the period of eight weeks provided for the return of advice by the Advisory Board is not yet over, the petitioners have a right of representation before the Advisory Board against the grounds of detention, which were served on them and explain by the Officers serving the grounds without availing that remedy the petitioners have no right to be heard in these petitions. Under Sec. 17 of the Act, the Government is empowered to confirm the order of detention after obtaining the advise of the Board or may revoke or modify the same, as the case may be. The period of eight weeks provided under Section 16 (1) of the Act in the instant cases, as the detention of the petitioners were made under Section 8 of the Act on 27.9.1985, will expire on 26 -11 -1985. The arguments advanced on this aspect though ingenious in my opinion is devoid of any substance in the facts and circumstances of the present cases, in which the orders passed under Section 8 of the Act have been challenged on the grounds of malafides and out of vindictiveness as a result of legal steps taken by the petitioners against their arrest in F. I. R. No. 101 of 1985 referred to above. In support of his contention, learned Government Advocate Mr. Amrish Kapoor placed his reliance on A. I. R. 1974 Kerala 85 (R. P. Goyal and another, petitioners Vs. The State of Kerala and others, Respondents), their Lordships while dealing the provisions of Order 22 (5) of the Constitution of India read with the procedure provided under the Maintenance of Internal Security Act disposed of the petitions on this short question that the petitioners can make representation and the State Govt. is bound to consider them. On going through the fact of that case, I am of the opinion that the facts are not identical so as to apply the ratio of that case in the present one, however, I appreciate the arguments advanced by the learned Government Advocate and the labour, which has been put by him in these cases. Under the circumstances of the present cases, I do not find it to be a fit case, in which the point raised deserves any decision which is kept open. Against their detention, learned Government Advocate produced the record on requisition by the Court of the District Magistrate aid of the Home Department. I find that there is no order -sheet in the record in order to find out where and when the District Magistrate recorded his satisfaction regarding detentions of the petitioners, there is no proper order except the typed order under Section 8 of the Act, the copy of which is annexed with the petitions which is general in nature and contains nothing regarding satisfaction of the District Magistrate for passing the orders 9f detention. It is also not disputed that along with the materials supplied to the detenues, copy of the Dossier was not supplied to them along with the grounds, which is the back bone of the order passed by the District Magistrate. From a bare reading of the grounds of detention, it appears that the District Magistrate mechanically passed the orders on the basis of the Dossier and the opinion expressed by the Superintendent of Police. The activities which are said to be against the security of the State are inferred only from F. I. R No. 101 of 1985 on the basis of which the offences charged are triable under the ordinary law of the land It is no doubt true that the subjective satisfaction of the District Magistrate should not ordinarily be interfered with or be disturbed by the Courts as held in several cases by their Lordships of the Supreme Court as well as of the High Courts, however, as held in A. I. R. 1975 S. C. 550 (Khudiram Das, Petitioner Vs. The State of West Bengal and others, Respondents), authority relied by the learned counsel for the petitioners: Referring a passage from AIR 1974 S. C. 2086, "Where the liberty of a subject is involved and he has been detained without trial, and a law made pursuant to Article 22 which provides certain safe -guards, it is the duty of the Court as the custodian and sentinel on the ever vigilant guard of the freedom of an individual to scrutinize with due care and anxiety that this precious right which he has under the Constitution is not in any way taken away capriciously, arbitrarily or without any legal justification." Thus where the liberty of a subject is involved, it is the bound: ant duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise then in accordance with law. In the instant cases, the back -bone of the order if the police dossier, the non -supply of the copy of which deprived the petitioners to make effective representation against their detention. It is now well established as held by their Lordships of the Supreme Court in the case of Ibrahim Ahmad Batti Vs. State of Gujarat and others, (A.I.R. 1982 S.C. 1500) that, all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenue." Failure on the part of the District Magistrate to supply the police dossier, which influenced his mind to arrive at a conclusion in passing the detention orders is a serious infirmities depriving the petitioners to make an effective representation. The authority relied on by the learned counsel for the respondents A.I.R. 1979 S.C. 541 (1) (Bhawarlal Ganeshmal ji, Appellant V. The State of Tamil Nadu and another, Respondents, AND (2) Bhawarlal Ganeshmal ji, Petitioner V. The State of Tamil Nadu and others, Respondents) on the facts of the present case is distinguishable and hence of no help to take a contrary view. I have taken a similar view in the case of Jamal Khoja & Ors V/s State reported in 1984 K. L. J. 213 regarding non -application of mind by the District Magistrate in1 the case of Abdul Gani Bhat, Petitioner V. State of J&K and another, Respondents) reported in 1985 Criminal Law Journal 481. One more peculiarity, which I find in the instant cases is the formal arrest of the petitioners under the order of detention on September 27, 1985, when they were already in Jail, the fact which was no doubt within the knowledge of the District Magistrate of which he has mentioned in the grounds of detention also, but unexplained delay of about nine days from the date of passing the orders on 18 -9 -85 supports the contention of the petitioners that the orders of detention are a camouflage and appears to be ante -dated and then serving of the grounds on September 30, 1985, which on calculation from the date of the order falls on twelfth day. With all the above said circumstances and the infirmities pointed out, I find that the orders passed by the District Magistrate, Doda quoted above are liable to be quashed and the petitioners deserves liberty if not wanted in any other case. 5. For the reasons stated herein above, the petitions are allowed and the orders of detention passed against the petitioners under the Jammu and Kashmir Public Safety. Act, 1978 vide Orders No. 3/85, 2/85, 5/85, 4/85, 7/85, 8/85, 1/85, 9/85 and 6/85 passed on 18 -9 -1985 by District Magistrate, Doda are hereby quashed. The petitioners are directed to be set at liberty and be released forthwith if not wanted in any other case.