Ashaq Hussain Pir & Mohd.Ashraf Mir vs State and others

Mr. Sofi has drawn my attention to the grounds of detention served to the detenues in the above referred petitions, wherein besides stating that

the detenues are members of outlawed terrorist organisation, are indulging in activities by participation in the acts of subversion. The organisation to

which the detenues belong, have phased their programme in different ways to spread terror and create chaotic conditions in the State and thereby

achieve their goal, by indulging in killing, kidnapping, looting, arson, extortion and other criminal acts. These are the activities of the organisations as

a whole and the detenues cannot be held responsible for these activites, as has been held by the courts, of the country.

It has specifically been alleged in the grounds of detention that the detenues have voluntarily joined in the secessionist movement and have been

actively participating in the antinational activites with full intention and malice. These activites besides having been declared as threat to the security

of the State, have been defined as antinational activites. It has also been averred in the grounds of detention that the activities of the detenues being

prejudicial to the security of the State, the ordinary law of the land is not sufficient to deter them to continue with such antinational activities and as

such, the detention of the detenues under the provisons of the J&K Public Safety Act have become imperative.

By refering the grounds of detention, Mr. Sofi wants to project that it is not because of the prejudicial activities to the security of the State that

they are being detained, but the grounds of detention go to project that the detenues are participating in antinational and terrorist activites. Both

these things have been taken out of the purvies of detaining a person under the preventive detention.

No doubt the provisions of the preventive detention do envisage that an individual can be detained in case his activites are prejudicial to the

security of the state and public order. Provisions of subsection (1)(a) of Section 8 of the J&K Public Safety Act fo provide that the Government

may, if satisfied in respect to any person that with a view to prevent him acting in any manner prejudicial to the security of the State orthe

maintenance of the public order he may be detained by a District Commissioner/District Magistrate or the Government and further more acting in

any manner prejudicial to the public order has been defined to mean promoting, propagation or attempting to create, feeling of enmity or hatred or

disharmony on ground of religion, race, caste, community or religion 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 liekly to disturb public order attempting to commit or committing, or instigating, inciting, provoking or otherwise abetting the

commission of, mischief within the meaning of section 425 of the RPC, where the commission of such mischief disturbs, or is likely to disturb public

order attempting to commit, or committing, or instigating inciting, provoking or otherwise abetting the commission of an offence punishable with

death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is

likely to disturb public order;

So by a close scrutiny of the definition and the parameters which have been laid down by the Statute, I do find a person is to betained under the

Preventive detention of the State when his activites are found prejudicial to the security of the State or maintenance of public order. Nowhere the

legislature or the ACt has provided that a person is to be detained in preventive detention for antinational activites. There is enormous and cogent

law on that score that if a person indulges in antinational activities, he can be prosecuted and punished at a regular trial. The provisions of the

preventive Dentention are not to be used or pressed into service to haul up a person or to deal with a person against whom allegations are made

that his activites are antinational, or even terrorist activites, for that also there is definite law which takes care of those activites.

The provisions of the J&K Public Safety Act have been enacted just to see that the security of the State and the maintenance of public order is

to be maintained. However, in the case in hand, the detaining authority while drafting the grounds of detention has said categorically that the

detenues are participating in antinational activites and terrorist activites, with full intention and has stated that the ordinary law of the land will not

deter them in continuing his antinational activities and as such, has'concluded that the detention under the provisions of the Public Safety Act has

become imperative. So the thrust which has been made by District Magistrate in drafting the order of detention is based on antinational activities, of

which complaint has been made by police dossier or other informative to the District Magistrate and called upon him to apply his mind while

passing appropriate orders. The learned District Magistrate, without appreciating the matter in its correct perspective and without application of

mind to the parameters within which he has to act was required to act regarding the activites of the detenue, which are prejudicial to the security of

the State and not on the activites which are reported to be antinational or terrorist. So this being a case, wherein District Magistrate, Kupwara has

not applied his mind, so the order of detentions passed by him and impugned in these petitions, cannot stand judicial scrutiny.

Since both the petitions referred to above involve identical question of law and fact, as such, both stand disposed of by this common order.

For the foregoing reasons, these petitions are allowed and the orders of detention bearing No. 120/DMK/PSA dated 412/1996 passed against

the detenue Mohd Ashraf Mir son of Mohmmad Ramzan Mir R/o Matragam Handwara and the detention order No. DMS/ PSA/156 dated

1621997 passed against the detenue Ashaq Hussain Pirson of Habibullah Pir R/o Marathgam, Handwara are quashed and the respondents are

directed to release the detenue forthwith, unless otherwise required in any substantive offence. This petitions are disposed of accordingly.