Decided on April 02,1999

GH. MOHI-UD-DIN Respondents


RAINA, J. - (1.) One cannot pretend to be oblivious to the unprecedented and un-exceptional turbulance that came to prevail in the State of J. and K. since the begining of the current decade of this last millennium. The mayhem created by the elements, local as also the mercenaries, traumatised the society. The rule of law yielded to the gun and bullet. No one could stand up against the dictates of the militants and the terrorists who held the society as hostage to subvert the social order and the security of the State. The aim and object of the militants - instigated, incited, abetted, trained and armed by the external elements, supported by the local black-sheep - has been to cause cecession (cessation) of the State of J. and K. from the Union of India. The ordinary laws failed in the abovesaid situation to arrest the worsening security scenario. In order to prevent the situation from going completely out of hands and in order to prevent the militants, their harbourers and sympathisers from subverting the peace and security of the State, the resort to preventive detention became necessary and unavoidable. It was in this backdrop that the District Magistrate, Budgam invoked his power under Section 8 (2) of the J. and K. Public Safety Act, so as to prevent the respondent, herein, from committing those acts that were prejudicial to the public order and security of the State.
(2.) The preventive detention of the detenu came to be ordered for eighteen months on the grounds :- "You are born and brought up in village-Rawalpora Tehsil Beerwa. You have received education upto 9th and are presently working as Mason in Srinagar. You are in active, dedicated and staunch member of JKLF, an outlawed organisation having its Hqrs. in POK/PAK. The aim and object of the organisation is to secede the State of J. and K. from Union of India through armed struggle. To achieve this goal the organisation has phased its programme in different stages, i.e. To Motivate Kashmiri Muslim Youth to join their organisation and to work for it, to send them to POK/PAK for attaining armed training in handling of sophisticated arms/ammunition and explosives and to indulge the arms/amn. provided to them, in subversive and disruptive activities in the Valley to circulate and distribute the anti-national literature among people, to kill the diginitaries and to attack at security forces with intention to kill them, to indulge in extortion of money from local civil population to set ablaze the civil and private property with intention to liberate the State of J. and K. from Union of India by resorting to an armed struggle in the Valley. That the JUM militants threatened you and you were forced to work with them. You denied to do so, by keeping in view the conditions of your family member. To save your life from JUM militants, you joined the JKLF on 1991. You were sent to Muzzafferabad (POK) for attaining in handling of sophisticated arms/amn. explosive in July-1991. After completion of the said training you were provided with arms/amn. and were directed to use the arms/amn. in indulging the terrorist and subversive activities. You were infiltrated to the valley in the year Sept. 1991. After return from across you indulged in subversive and disruptive activities in the Valley for a period of six-months. After then you started your own work of Masonary in the city and other places, till your apprehension. From the above-mentioned facts it is clear that your activities are highly judicial to the security of the State. No doubt you are presently lodged in APLU/Bgm, but there is every likelihood that you may get released on bail which will defeat the purpose to deter you from continuing acts prejudicial to the security of the State. Hence, you Gh. Mohi-ud-din Mir Sarvar S/o Ab. Samad Mir R/o Rawalpora, Tehsil Beerwa, District Budgam, aged 26 years, are hereby detained under Section 8 as envisaged in J. and K. Public Safety Act.
(3.) This order of detenion came to be challenged in Habeas Corpus No. 71 of 1997. The learned Judge who disposed of this petition held that sufficient reasons and sufficient material was not made available to the District Magistrate to clamp the preventive detention on the detenu. The learned Judge felt that resort to preventive detention could not have been made for the past prejudicial activities of the detenu which were not at all proximues in time to the passing of the detention order. The detention order thus got quashed with the direction to the appellant to compensate the detenu in the amount of Rs. 10,000/-.;

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