Hajra vs State and ors.

This is a writ petition for issue of writ in the nature Habeas Corpus u/s 103 of the Constitution of J&K State read with Art. 226 of the

Constitution of India for quashing the orders of detention of Khaliq Wani S/o Munawar wani Akbar Wani soninlaw of Ahsan Lone residents of

Mughalpora Shopian and AK Dar s/o Subhan Oar r/o Nikas Pulwama.

In this writ petition, it has been prayed also that the order of detention be quashed and the deteaues be set at liberty.

Copies of the detention orders have been produced and are on the file as annexures G. H. and I respectively. A notice was issued and the

District Magistrate, Pulwama has filed the affidavit alongwith the copies of grounds on which the detention of these persons was ordered. It has

been stated in the petition that the grounds of detention are vague and irrelevant and as such the whole detention orders should be quashed. In the

petition it has further been mentioned that the grounds, Particularly, Nos: 2. 3, 4 5 and 6 were vague and irrelevant.

I have heard learned counsel for the parties today at some length.

Learned counsel for the petitioner has stated that ground No: 2 was vague inasmuch as it does not mention the names of other collegues with

whom the detenue was alleged to have associated and held a meeting for creating hatred against the Hindu community in the State. He has also

stated that in the grounds ft stated was by the District Magistrate that the detenue alongwith other colleagues decided to crush the minority

especially Hindus as was being done in other parts of the country, Learned counsel for the petitioner submitted that the expression ''the other parts

of India"" was too vague and it was not apparent to which 'part of India it refers and because of this vagueness, the detenues were not able to file

effective representations before the concerned Authorities. The next submission of the learned counsel was that the 3rd ground of detention, that

the detenue as well as other collegues decided to hoist National Pakistani Flag with an intention to creat caos and confusion, in the Hindu

community, was totally irrellevant as the hoisting of Pakistani National Flag was not at all prohibited by the State Govt. by virtue of any Notification

or SRO. According to him the hoisting of Pak. National Flag was not banned and could be hoisted of in any part of India especially in Kashmir

where it is not specifically banned.

Learned Counsel for the petitioners has also referred to ground No : 5 and has stated that the ground discloses that District Magistrate was not

aware of the fact that the detenues though taken into custody for an offence u/s 379/120B RPC, were released on bail as the learned District

Magistrate has not stated so in his affidavit. According to the learned counsel, it is obvious that the District Magistrate has not shown his awareness

while passing detention order (s) which was very much required, in law.

In ground No : 6, it has been alleged that the defense ("") as well as others .after offering Friday prayers came out in a procession and raised

certain derogatory slogans which Were against Hindu community living in Kashmir. Learned counsel for the petitioner submitted that this ground is

also vague as this does not show as to where from this procession was taken out in Pulwama or elsewhere is not known and where it was taken in

pulwama and from which mosque, which was not known.

8 Learned counsel for the petitioners has vehemently stressed at the bar that the law laid down by various courts including this court as well as the

Supreme Court was, to the effect that even if one ground oat of several grounds of detention order was vague or irrelevant the all grounds fail and

with that the detention order also fails. In support of his contention, the learned counsel has referred to 1977 JKLR (August part) Page 202 (DB

authority). He has referrered to 1983: KLJ (Sept part) Page 326 also. From a perusal of these judgments it appears that even if one of the ground

of the detention order was either vague or irrelevant, the whole detention order should be quashed and the detenue ordered to be released.

Learned counsel has also referred to AIR: 1983 SC 1028 From a perusal of this judgment, it appears that were it is shown that the detaining

authority has not shown his awareness at the time of passing of the detention order, the detention order should be quashed. In this regard learned

counsel for the petitioners has stated that though it was a fact that the case u/s 379/120B RPC had been registered against the detenues, but the

detenues were on bail. By not stating in the grounds the detenues were released on bail, the District Magistrate has shown that he was not aware of

all the facts with regards the matter and has shown lack of application of mind on the detaining Authority.

9 Learned Chief Govt. Advocate has argued that the grounds of detention were served on the detenues in urdu which show that there were 31

other persons who took part in the meeting of 1,8. 1983 at pulwama. This also gives the names of the persons who attended the meeting. Counsel

for the petitioners, however disputes that the grounds of detention were served in Urdu According to him the District Magistrate himself has

furnished grounds in english to this Court and stated so in his affidavit.

10 Be that as it may, the Court is not assisted in any way with regards the allowing or disallowing this writ of Habeas Corpus petition.

11 Learned C.G.A has referred to AIR: 1981: SC: 2166. The Court is however, of the view that the judgment was not applicable to the facts of

the case at all.

12 It was a fact that in the grounds of detention it was not stated as to who were other colleagues who participated in the meeting on 1.8.83. This

was also not stated in the grounds as to in which part of India muslims in India were being harassed. The grounds thus suffer from vagueness in this

regard. Moreover, learned C.G.A. has not been able to refer to any SRO or Notification in accordance with which the hoisting of National

Pakistani flag was banned in any part of India specially in Kashmir. Therefore this ground appears to be irrelevant on the face of it. The procession

which is alleged to have be taken out on 20.6.83 and alleged objectional slogans were raised does not disclose at which place the said procession

was taken out. Learned counsel for the petitioners submit that this ground also suffers from vagueness and that the detenues should be released

because of the vagueness of this ground alone.

13 I have considered the arguments and perused the relevant record as well as have gone through the relevant citations made at the bar.

14 I am satisfied that the learned counsel for the petitioner has made a case for immediate release of the detenues from the detenues and that the

detention orders therefore, were illegal and I set aside them and I direct that the detenues be set at liberty forthwith.

The petition is accordingly allowed and disposed of.