- (1.) This is a petition under Article 32 of the Constitution challenging the detention of the petitioner by order No. 50/PDA/70 dated August 3, 1970 passed by Syed Mohammad Shaffi Andrabi, I.A.S. District Magistrate, Poonch, under Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964. In this order it is stated that the District Magistrate is satisfied that with a view to preventing Lal Mohd. son of Fazal-ud-Din, resident of Arri P.S. Mendhar District Poonch, from acting a in a manner prejudicial to the security of State, it was necessary to detain him. By another order dated August 3, 1970 the said District Magistrate considered it against the public interest to disclose the grounds of detention to Lal Mohd. and he therefore directed in pursuance of Section 8 read with Section 13 A of the Act that the said Lad Mohd. be informed that it was against the security of the State to disclose to him the grounds on which his detention order was made. On August 24, 1970 the Government, having considered the order of detention along with the report of the District Magistrate and the grounds on which the order had been made and other particulars having bearing on the matter, approved the said detention order.
(2.) To the writ petition, 5 parties have been made respondents, (1) Jammu and Kashmir State, (2) Deputy Commissioner (D. M. Poonch,) (3) Darshan Singh, D.S.P.,C.I.D. Poonch, (4) Sumittar Singh, Officer Incharge Interrogation Centre, Jammu and (5) Captain Balgore Singh Q.M. 18th Bn. the Sikh Regiment, C/O 56 A.P.O. The first four respondents have failed affidavits in reply to the allegations made in the writ petition. The detenu has appeared in person and he has raised a number of points; (1) that the detention was mala fide. (2) that the detention was illegal, and (3) that the affidavits filed on behalf of the respondents were defective. The case of the petitioner as far as the first point is concerned, is that he was a permanent school teacher and he was a faithful government employees. In 1965, the petitioner used to help the Indian Military under the guidance of one Captain Baljour Singh of Indian Army Intelligence and his subordinates. Captain Baljore Singh is respondent No. 5 in the writ petition. The petitioner stated that he was kidnapped by the Pakistan Guerillas, because he had made inflammatory speeches against them. After being kidnapped from India, he was interrogated in Pakistan and tortured by inhuman and barbarous methods. The petitioner further stated that he remained in the grip of enemy for more than four years till he was released by the High Court of the so-called Azad Kashmir. He was expelled from Pakistan after his release and reached India and he was reinstated in service on the basis of the reports of the Police and C.I.D. authorities. He further alleged that it was Darshan Singh D.S.P. who wanted bribe in order to enable the petitioner to be treated on duty for the whole period of this arrest and detention in the Pakistan Jails. As the petitioner refused to do so, he was threatened by Darshan Singh and he complained against Darshan Singh to one Mohd. Aslam, M.L.A. On this, Darshan Singh threatened him. He alleged that Darshan Singh was a habitual bribe taker and he earned thousands of rupees from the returning migrants of Tehsil Mendhar and Havali. He further alleged that one Mohd. Bashir, Head Constable, C. I. D, had personal grudge against him and the detention orders have been passed due to the efforts of Darshan, D. S. P., Mohd. Bashir Head Constable, C. I. D. Mendhar and cunning and prejudicial men of Rajput community. The respondents have denied all these allegations. The State has filed two detailed affidavits. The affidavits have been sworn to by Mr. A. R. Khajuria, the Deputy Secretary to the Government, Home Department, Jammu and Kashmir Government. We gone through the affidavits and it is quite dear that if what is stated in the affidavits is true, there cannot be any question of mala fides. We cannot go into the merits whether the facts stated into the affidavits are correct or not, but we can see that on these facts, no charge of mala tides can be made out. The case of the State is that he was not kidnapped as alleged by the petitioner, but he had some relations namely Mohd. Sharif posted as Captain (nephew) and Mohd. Humain Havaldar of Pakistan Razakars (brother-in-law) who were posted on behalf of the Government of Pakistan at the border post Kanet District Mirpur. According to the State, the petitioner was supplying information to the said officers till August 1965 when the Razakars entered into Mendhar and actively collaborated with Razakars in attacking the security post at Dhirana where grave damage to the life and property was done. It is further stated that the petitioner had crossed over to Pakistan after cease-fire in October, 1965 along with the raiders, and his relations referred to above were at the border post and it had been reliably reported that they were giving to the petitioner intensive training for spying and had sent him back in Mendhar area in June 1970. During the period from January 1970 upto August 1970, his activities were watched and it was reported that he was working as a Pakistan agent and was securing information about the deployment of the security force from Mendhar area and supplied the said information to his relations. It is further stated that the various reports collected in this manner were brought to the notice of the District Magistrate who after having satisfied about the necessary detention of the petitioner, passed the order of detention against the petitioner. The reinstatement of the petitioner was explained on the ground that it was made without any consultation with the Counter-Intelligence Branch of the State Government.
(3.) It appears that while in Pakistan, the petitioner paced his B. A. examination from the Punjab University, Lahore, as shown by the certificate which was produced at the time of the reinstatement. It is Urged in the affidavit that this was inconsistent with the petitioner's story that he was detained by the Pakistan authorities. The Government submits that the petitioner went over to Pakistan side of his own accord in 1965 and pursued his studies besides preparing himself to do such activities which were prejudicial to the security of the State. Darshan Singh, D. S. P. in his affidavit has denied all the allegations made against him. It is not necessary to refer to them in detail Sumiter Singh, Deputy Superintendent of Police, C.I. D. has also filed an affidavit. He denied that there was any illegal arrest of the petitioner in June 1970. He states that the petitioner was arrested on that date in case No. FIR No. 7/70 under Section 2/3-A E. I. M. C. O. (Egress and Internal Movement Control Order) and under Section 4. E. O. A. by Mendhar Police on 13-7-1970 and was remanded to police custody for a week On July 20, 1970, after the expiry of the remand, further remand for one week was taken from Magistrate, Jammu. He further states that the petitioner remained in police custody, Jammu from 18-7-1970 to 27-7-1970 and it was during this period of investigations that it was confirmed that he was a regular Pakistan Agent and Pakistan Spy since 1965. The State has also filed a letter indicating that the military authorities were of the opinion that they suspected that the petitioner was a planted agent of Pakistan. On these facts it is impossible to say that the order of detention has been passed mala fide.;