PETITIONER:
ABDUL GHANI
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT:
18/12/1970
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
DUA, I.D.
CITATION:
1971 AIR 1217 1971 SCR (3) 275
1971 SCC (3) 225
ACT:
Constitution of India, 1950 (as applied in Jammu and
Kashmir) Art. 35(c)-Effect on petitioner’s right to move
Supreme Court under Art. 32.
Jammu and Kashmir Preventive Detention Act, 1964 ss. 3(2), 5
and proviso to s. 8-Direction not to disclose grounds of
detention-If copy of direction should be served-Acting in
any manner, if takes in ‘acting in a manner’-Mistakes in
direction, effect of-Interest of secruity of State’, if
takes in ‘public interest’.
HEADNOTE:
By an order under s. 3(2) read with s. 5 of the Jammu and
Kashmir Preventive Detention Act, 1964, dated 9th May 1970,
the petitioner was detained on 22nd May, 1970. On the same
day, in pursuance of a direction made by the District
Magistrate on 9th May 1970, under the proviso to s. 8, the
petitioner was informed that it was against the interests of
the security of the State to disclose to him the grounds on
which the detention order was made. The detention was
confirmed by the State Government.
In a petition under Art. 32,
HELD : (1)(a) The introduction of the provision contained in
Art. 35(c), when applying the Constitution to the State of
Jammu and Kashmir did not in any way affect the right of a
citizen of Jammu and Kashmir to move the Supreme Court of
India for an appropriate writ under Art. 32. Its effect was
only that when approaching this Court the detenu could not
challenge the validity of the Act on the ground that any of
its provisions contravened Art. 22. Therefore, it has no
bearing on Art. 32(4). [278 G-H]
(b) Further, under Art. 370 the President is given full
discretion to apply the Constitution with such exceptions
and modifications as he may, by Order, specify. At the time
of applying the Constitution, no fundamental rights existed
in the State of Jammu & Kashmir and they came into existence
in the modified form only by virtue of the Order of the
President applying the Constitution. ‘Such a modification
at the initial stage cannot be challenged on the ground that
it abridges any of the fundamental rights. [279 A-D]
(2) When the petitioner was informed that it was not in the
public interest to disclose the grounds to him there was no
need to serve on him the copy of the direction under which
be was so informed. [279 F-G]
(3) The present case was not a case where the District
Magistrate could be held to have passed the order without
any material at all. The order recites that the District
Magistrate is satisfied that it is necessary to detain the
petitioner with a view to preventing him ‘from acting in a
manner prejudicial to the security of the State. That the
satisfaction was based on materials is clarified by the
order of the Government confirming the detention which
mentions that the District Magistrate had with his report
sent to the Government the grounds on which he made the
order as well I,’, other relevant particulars. [280 C-E]
(4) The expression ‘acting in any manner’ used in the Act
covers a case where the satisfaction of the District
Magistrate is that the person, in ‘respect of whom the order
is going to be made, is to be prevented from
276
acting in a manner’ prejudicial to the security of the
State. The District Magistrate, by using the word ‘a’
instead of word ‘any’ as used in the statute has, therefore,
not made an order which is outside the scope of the statute.
[280 6-H.]
(5) The order of detention under s. 3 and the direction
under the proviso to s. 8 were passed by the District
Magistrate on 9th May, out the petitioner was actually
detained on 22nd May. The District Magistrate committed a
mistake by reterning to the petitioner as a person who ”has
been detained”, in the direction, but that would not imply
that the detention was illegal. [281 C-E]
(6) The proviso to s. 8 uses the words ‘public interest’.
Any action in the interest of the security of the State is
clearly in public interest and so the direction was fully
covered by the proviso. [281 F]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 384 of 1970.
Petition under Art. 32 of the Constitution of India for a
writ in the nature of habeas corpus.
S. Lakshminarasu, for the petitioner.
R. N. Sachthey, for the respondent.
The Judgment of the Court has delivered by
Bhargava, J. Abdul Ghani has filed this petition under Art.
32 of the Constitution praying for the issue of a writ of
Habeas Corpus, alleging that his detention in jail is
illegal. He has been detained in pursuance of an order
passed by the District Magistrate of Poonch in the State of
Jammu & Kashmir under section 3(2) read with section 5 of
the Jammu & Kashmir Preventive Detention Act, 1964
(hereinafter referred to as “the Act”). That order is
reproduced below :-
“Whereas, 1, Syed Mohammad Shaffi Andrabi,
IAS, District Magistrate, Poonch am satisfied
that with a view to preventing Abdul Gani s/o
Asdha Caste Rather Kashmiri Muslim r/o Chohana
P/S Surankote District, Poonch, from acting
in-a manner prejudicial to the security of the
State, it is necessary so to do.
Now, therefore, in exercise of the powers
conferred by section 3 (2) read with section 5
of the Jammu & Kashmir Preventive Detention
Act, 1964, 1, Syed Mohd. Shaffi Andrabi, IAS,
District Magistrate. Poonch, hereby direct
that the said Abdul Gani be detained in
Central Jail Jammu subject to such conditions
as to maintenance of discipline and punishment
for breaches of discipline as have been
specified in the Jammu & Kashmir Detenu
General Order of 1968.
277
Issued this day the 9th May 1970 under my hand
and seal.
Sd S.M.S. Andrabi, IAS
District Magistrate, Poonch.”
The order was passed on 9th May, 1970, and on the same day,
the District Magistrate issued a direction under the proviso
to section 8 of the Act which reads as follows :-
“Whereas Abdul Gani s/o Asdha Caste Rather
Kashmiri Muslim r/o Chohana p/s Surankote
District Poonch, has been detained in
pursuance of order No. 38/PDA/70 dated 9th
May, ’70 made by me under section 3(2) read
with section 5 of the Jammu & Kashmir
Preventive Detention Act, 1964, with a view to
preventing him from acting in a manner preju-
dicial to the security of the State and;
Whereas, I consider it against the public
interest to disclose the ground of detention
to the said Abdul Gani s/o Asdha Caste Rather
Kashmiri Muslim r/o Chohana p/s Surankote,
District Poonch.
Now, therefore, in pursuance of section 8 read
with section 13-A of the said Act, I hereby
direct that the said Abdul Gani be informed it
is against the security of the State to
disclose to him the grounds on which his
detention order was made.
Issued this day the, 9th of May ’70 under my
hand and seal.
Sd/ S. M. S. ANDRABI, IAS
Distt. Magistrate Poonch.”
The petitioner was actually detained on the 22nd May, 1970,
in pursuance of the detention order and, on the same day. he
was informed that it is against public interest to disclose
to him. the grounds on which the detention order was made in
pursuance of the direction made by the District Magistrate,
mentioned above. On this information being conveyed to him,
his signatures were taken in token thereof on the back of
the paper on which this direction had been issued by the
District Magistrate. His detention was subsequently
confirmed by the State Government, after the grounds on
which the order had been made and the other particulars
having bearing on the matter had been examined by the Chief
Minister. On these facts, learned counsel appearing for the
petitioner has challenged the, validity of the detention on
seven different grounds.
278
The first ground is that, when the Constitution of India was
applied to the State of Jammu & Kashmir by the order of the
President under Art. 370 of the Constitution, Article 35 was
modified in its application to the State of Jammu & Kashmir
by adding clause. (c) which reads as follows :-
“35. (c) No law with respect to preventive
detention made by the Legislature of the State
of Jammu & Kashmir, whether before or after
the commencement of the Constitution
(Application to Jammu & Kashmir) Order, 1954,
shall be void on the ground that it is
inconsistent with any of the provisions of
this Part, but any such law shall, to the
extent of such inconsistency, cease to have
effect on the expiration of fifteen years from
the commencement of the said Order, except as
respects thing done or omitted to be done
before the expiration thereof”.
It is by virtue of this clause (c) of Art. 35 as contained
in the Constitution applied to the State of Jammu & Kashmir
that the provisions of the proviso to section 8 and section
13-A of the Act cannot be challenged on the ground of
contravening the provisions of Art. 22 of the Constitution.
This point was considered by a Bench of this Court in Sampat
Prakash v. State of Jammu & Kashmir and Another,(1) where
the validity of the proviso to S. 8 and of s. 13A of the Act
was upheld. Learned counsel has urged that, in that case,
the Court left the question open whether Art. 35(c) of the
Constitution had been validity or invalidily introduced in
the Constitution in its application to Jammu & Kashmir. His
argument is that this article was introduced by an order
made by the President in exercise of his powers under Art.
370 and, by this provision, the fundamental right of a
detenu to seek the remedy against the detention in the
Supreme Court of India had been abridged, so that the
application of this provision was in contravention of Art.
32(4) of the Constitution and, consequently, void.
This submission made by learned counsel, on the face of it,
has no substance at all. The introduction of the Provision
contained in Art. 35(c), when applying the Constitution to
the State of Jammu & Kashmir, did not in any way affect the
right of a citizen of Jammu and Kashmir to move the Supreme
Court of India, for an appropriate writ under Art. 32. The
effect of that amendment only was that, when approaching the
Supreme Court, the, detenu could not challenge the validity
of the Act on the Lyround that any provision of it
contravened the provisions of Art, This modification in the
Constitution had, therefore. no bearing at all on Art.
32(4). Further, under Art.
(1) [1969] 2 S.C.R. 365.
279
370, the President is given the full discretion to apply the
Constitution with such exception and modifications as he
may, by order specify. It was at the initial stage , when
applying the Constitution to the State of Jammu & Kashmir,
that this modification was made in Art. 35 This was,
therefore, not a case where any provision of the
Constitution as already applied to Jammu & Kashmir was being
modified in which case only a question could arise whether
that modification was permissible. The modification at the
initial stage of applying the Constitution itself cannot be
challenged on the ground that it abridges any of the
fundamental rights. _At the time- of applying the
Constitution, no such fundamental rights existed in the
State of Jammu and Kashmir. They came into existence only
by virtue of the Order of the President applying the
Constitution and at that stage they came into force in the
modified form in which they were applied. This point raised
by learned counsel, therefore, has no force at all.
The second point urged was that, in the direction given
under the proviso to s. 8, the District Magistrate merely
ordered that the petitioner be informed that it was not. in
‘Public interest to disclose the grounds of detention to
him, and failed to add a further direction that a copy of
that order must be actually served on the petitioner. It
was urged that a copy of that direction in writing should
have been delivered to the petitioner and, for this
proposition, reliance was placed on the, decision of this
Court in Harikishan v. The State of Maharashtra & Others(1).
That case, however, has no application at all, because, in
that case, the question that arose was whether it was
necessary that a copy of the grounds of detention, which
‘Were quite lengthy, should be delivered to the detenu in
addition to those grounds being communicated to him by
being read out and translatede In the present case, under
the proviso to section 8, no grounds of detention have been
served and. there is no question of the petitioner knowing
the grounds in detail id order to make a representation
against them. He was only to be informed that it was not in
the public interest to disclose the grounds. For such
information, there was no need that the copy of that order
must be served on him
The third point urged raises a question of, fact. According
to the Petitioner, he was never given this information and
his, signatures were taken on a blank sheet of paper. This
argument is based on assertion of wrong facts. We have seen
the original order issued under the proviso to section 8.At
the time when the information in pursuance of. it was given
to the.
(1) [1962]Supp.2S.C.R.918.
280
petitioner, an endorsement was made on the back in Urdu
reciting the fact that the petitioner hack been informed as
directed and it was under this endorsement that the
signature of the petitioner was taken. The petitioner’s
signature is also in Urdu and the handwriting shows that he
can read and write Urdu very well. Since he signed under,
the endorsement, it is clear that he must have known what he
was signing and his assertion in the present case that his
signatures were taken on a blank paper is totally false.
The fourth point merged was that the District Magistrate,
when making the order for detention, did not apply his mind,
because his order does not mention the existence of any
materials which could have impelled him to make, the order
of detention of the petitioner. In the order made under
section 3 of the. Act, the existence of material does not
require to be mentioned. The order recites that the
District Magistrate is satisfied that it is necessary to
detain the petitioner with a view to preventing him from
acting in a manner prejudicial to the security of the State.
That this satisfaction: was based on materials is further
clarified by the order of the Government confirming the
detention which mentions that the District Magistrate to the
Government the grounds had, with his report, sent on which
the order had been made as well as well as other particulars
having bearing on the matter., It is, therefore not a case
where the District Magistrate can be held to have passed an
order without any material at all.
The fifth point. urged is that, in the order of detention,
the District Magistrate has when giving the reason for
making the order, stated that he is satisfied that it is
necessary to do so with a, view to preventing the petitioner
from acting in “a” manner prejudicial to the security of the
State, while section 3 of the Act mentions that such an
order can be made, if the. Government or the District
Magistrate is satisfied with respect to any person that it is
necessary to make the order with a view to preventing him
from acting in “any” manner prejudicial to the security of
the State. According to learned, counsel, the District
Magistrate, by using the word “a” before the word “manner”
instead of the word “any” as used in the statute, made an
order which is outside the scope of the statute. The
argument is clearly misconceived. The expression “acting,
in any manner” used in the Act clearly. covers a case where
the satisfaction of the District Magistrate is that the
person, in respect of Whom the order is going to be made, is
to be prevented from “acting in a manner” prejudicial to the
security of the State. The point raised has merely to be
stated to be rejected.
281
The sixth point argued was that, in the order containing the
direction that the petitioner be informed that it is not in
public interest to communicate the grounds of detention to
him, the District Magistrate has referred to the petitioner
as one who “has been” detained, which shows that, on 9th
May, 1970, when,,-this order was made, the petitioner was
already under detention, so that the plea of the(,
petitioner that he was actually in custody earlier than 22nd
May, 1970, is correct. Since there was no authority for
earlier detention, his detention must be held to be illegal.
It is true that the language used in the order under the
proviso to section 8 is incorrect. It is clear that both
the order of detention under section 3 and this direction
under the proviso to section 8 were passed by the District
Magistrate on the same day one after the other. The proviso
to section 8 permits the District Magistrate to make the
direction at the same time when the order of detention is
made under section 3, and this is what the District
Magistrate actually did. He appears to have used the
expression “has been” by mistake. It has been established
by affidavits filed on behalf of the Government that, in
pursuance of the order of detention dated 9th May, 1970, the
petitioner was actually detained on 22nd May, 1970 and not
before the order containing the direction under the proviso
to section 8 was issued. The use of this incorrect
expression does, not imply that the detention was illegal.
The seventh and the last point urged was that, under the
proviso to section 8 of the Act, non-communication of the
grounds of detention is permissible if communication; of
grounds is against public interest, while, in the direction
made by the district Magistrate, he has stated that it is
against the interests of the security of the State. This is
mere quibbling. Any action in the interest of the security
of the State is clearly in public interest, so that the
direction was fully covered by the proviso to section 8.
None of the grounds urged,_thus, has any force. The deten-
tion of the petitioner is valid. The petition is dismissed.
V.P.S. Petition dismissed.
282