Jamal Khoja vs State

Heard the learned counsel for the petitioners and the respondent. These seven writ petitions Nos. 447/83 448/83, 449/83 450/83, 451/83,

452/83, and 453/83 are filed under Section 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus against the detention of the petitioners respectively detailed as follows:

1) Writ Petition No. 447/83 Jamwal Khoja

2) Writ Petition No. 448/83 Gani Khoja

3) Writ Petition No. 449/83 Nazir Khoja

4) Writ Petition No. 450/83 Abdulla Khoja

5) Writ Petition No. 451/83 Ahad Khoja

6) Writ Petiiton No. 452 Mehda Khoja

7) Writ Petition No. 453/83 Maqbool Khoja

Are detained under Section 8 clause (2) of the Jammu and Kashmir Public Safety Act, J978 by a similar order passed by District Magistrate,

Kupwara on August 26, 1983 and thereby confirming the order under subsection (1) of section 13 of the said Act without mentioning any period of detention. The grounds of detention annexed with the order as follows:

You are notoriously known and consequently on police records as the leader of gangsters and criminals comprising your family members. In spite of various remedial measures and other legal actions taken to bring your family round you organised your members to redouble your vigorous activities with criminal designs.

In the past you with your accomplices has been booked in a score of criminal cases ranging from criminal trespass of rape, arson, attempt to murder robbery, thefts illicit forest trade. You were also booked U/s 110 Cr. P. C. But you managed to get. all cases pending trial gutted in fire when twice the concerned court buildings were pullablaze by mischief mangers under your leadership and active connivance.

Respectly you have been booked Vide FIR Nos. 9/83 u/s 392/148/201/307/353 RPC, 20/83 u/s 379 RPC 6 Forest Act, 103/83 u/s 379I20B

RFC and 6 F. Act, 170/82 u/s 366/109 RPC P/S

Villagara and Kupwara. Worst designs of your are as per reliable secret information's that you with your accomplices managed to put ablaze the court building of Judicial Magistrate 1st Class Kupwara in March 1983 and thereby attempted to get all your cases burnt the thus put and to your criminal records to start afresh in your criminal maneours.

Based on these facts and other secret information you have been found to be directly and undoubtly involved in various sensational and henious crimes like illicit smuggling of timber, arisen, abduction, criminal tresspass, house breaking, and even attempts to murder. You and your accomplices have thus created alarming pubic disorder and the panicridden society at large feels insecure in your hands. Your above activities being highly prejudicial to the maintenance of public order as such have been detained under J&K Public Safety Act, 19 8.

Sd/ District Magistrate,

Kupwora.

2 Learned counsel for the petitioners strenuously submit that the impugned order of detention is in clear violation of provisions of the Jammu and

Kashmir Public Safety Act, 1978 (hereinafter called the Act,) and the detention of the petitioners is violative of Article 22 (5) of the Constitution of

India. He further submits that not even the material on the basis of which the District Magistrate formed his subjective satisfaction are supplied to

him, but the grounds referred to above are also vague and not he grounds to support the order of detention under any of the provisions of the Act.

All the grounds stated relates to the commission of offences which are ordinarily friable by the criminal court and the extraordinary power exercised under the Act is without any foundation.

Learned Advocate General appearing for the State fairly concedes and in my opinion rightly, that the grounds on the basis of which the detention

order is passed are generally triable in an ordinary criminal court regarding which FIRS are already registered , and the other grounds relating to putting the Judicial Magistrate ; Court Building on fire in March, 1983 and a similar incident also vague to the extent that it does not mention the exact date The contention of the learned counsel for the petitioners is that on account of the failure of the District Magistrate to mention the dates in the grounds has deprived the petitioner to make the affective representation.

On hearing the parties, I am of the opinion that the order of detention passed by District Magistrate, Kupwara against the petitioner on August

1983 suffers from the infirmities, which are mentioned above. The liberty of a man is available right, which cannot be permitted to be taken

away in an ordinary/ manner as done by the District Magistrate in the present case?| In so far as the nonsupply of material is concerned, learned counsel for the petitioner relies on a decision of the Hon'ble Supreme Court of India reported in AIR 1982 S. C. 1500 ( Ibrahim Ahmad Batti Vs.

State of Gujarat and others ), the principle laid down by their Lordships of the Supreme Court in para No. 10 of the judgment is as follows :

Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases :

(a) 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.

The above compliance is not made in the present case. Similarly the grounds are also vague. Thus under the circumstances the petition is

allowed, the order passed by the District Magistrate under Section 8 and 13 of the Jammu and Kashmir Public Safely Act, 1978 by the respondents is quashed. The respondents are directed to release the petitioner forthwith and he be set at liberty unless wanted in any other case.

This order of release will also govern other petitioners referred to above and the order be attached in each petition directing the above said petitioners to be released forthwith.