IMPORTANT POINT
Preventive detention is not a substitute of a punitive action and where the grounds of detention served on the detenue make out a case of law and order, the cases are required to be dealt with by the authorities under the ordinary law without having resort to the provisions of preventive detention.

Headnote:J. & K. Public Safety Act. 1978- Section 8- Orders of detention under Challenged- Grounds of detention served upon the detenues do not stand the test of amounting to prejudicial to the 'public order'- Material on record in fact make out a case of 'law and order' which is required to be dealt with by the authorities under the ordinary law- Detaining authority not stating that the criminal trial of the deteneues was not possible- Held: Preventive detention measure cannot be resorted to mechanically.
Held: The detenues in these cases are alleged to be the members of Ladakhi Budhist Association stated to have been formed in the years 1935 and not having indulged in any anti-national, communal or subversive activity prior to the start of the present agitation allegedly for the achievement of their demands claimed by them to be genuine and alleged to be without any basis by the State. A persual of the grounds of detention served upon the detenues and the parawise reply filed on behalf of the respondents shows that the allegations made therein are in fact against the Association which has neither been declared illegal nor banned under any provision of law, The detenues are alleged to have been detained by the orders passed by the detaining authority on 2-9-1989 bearing same Number being J C-13 (M) PSA/89. It is alleged in the preliminary para of the grounds of detention that the detenues were the office bearers or activists of the Ladakhi Budhist Association and have launched a movement to expell Sunni Muslims from Ladakh by subjecting them to prosecution. It is alleged in almost all the grounds of detention that the activities prejudicial to the alleged public order were started by the detenues on or about 27th August, 1989 when some inflamatory anti Kashmiri speeches were made in Gompa Soma and the restriction imposed under Section 144 of the Criminal Procedure Code were defied. Cases were registered against some of the detenues who had allegedly committed offences punishable under the Penal Code. Shri Thupstan Chewang who is alleged to be the President of Ladakh Budhist Association is stated to have delivered a speech inside the Gompa provoking the people resorting to violence. It is again submitted that some secret meeting was held by the members of the Association wherein it was resolved that Sunni Muslims be harassed by the Budhists so that they leave Ladakh for good. It also transpires from the grounds of detention that various F.I.R. being FI.R. Nos. 100/89, 138/89, 52/89, 102/89, 128/89, 23/87 and others were registered against the detenues. The casual manner in which the State Authorities have chosen to contest these petitions have prevented this Court from appreciating the allegations made in the aforesaid F.I.Rs. to ascertain their nature and gravity. Even in the parawise reply as distinguishable from counter affidavit, the respondents have not been in a position to show that the acts complained or the grounds alleged against the detenues were intended to serve the purpose of the act warranting detention for the maintenance of the public order. From the persual of the grounds of detention the allegations made in the parawise reply and the position of law as settled by the highest Court in the Country, I have come to the conclusion that detenues were not directed to be detained for the purposes of Act namely preventing them from acting in any manner prejudicial to either the security of the State or the maintenance of public order. (Para 10)

JUDGMENT

Mr. R.P. Sethi, J.- Orders of detention passed against S. Shri Thupstan Chewang, Rigzin Yaksha, Tashi Choosgial, Tsering Lorjey alias Jugnoo, Sonam, Anchok, Nawang Chosghil, Wangial Pupchok and Thufstan Dawa under the J. & K. Public Safety Act, 1978 have been challenged in these petitions. The orders are alleged to be liable to be set aside on the grounds of having been passed in a mechanical manner, the grounds of detention are vague and ambiguous, the grounds of detention even if admitted do not make a case of maintenance of public order justifying detention, the detention orders have been passed in colourable exercise of the powers of the respondents and misuse of the authority of the Government with a view to allegedly suppress peaceful non-violent agitation of Ladakhies. Section 13 of the J. & K. P.S. Act is alleged to have been violated inasmuch as the grounds of detention were not supplied to the detenues within the time specified under law and that the petitioners have been denied the opportunity of making effective representation against the order of detention.

2. Narrating the facts and circumstances leading to the filing of the present petition it is submitted that the detenues are residents of Ladakh and belong to Budhist religion. It is alleged that the State Government has been adopting an attitude of discrimination deliberately and purposely against Ladakh Region forcing them to strive for redressal of their legitimate and genuine grievances. It is submitted that the Ladakhies have resorted to all, legitimate and peaceful means to bring the attention of the State as well as Central Government about the problems being faced by them but their grievances were never redressed. They have been carrying on peaceful and non-violent struggle to achieve justice, equity and fairplay but without any success. It is submitted that Ladakhi Budhists recently again started a peaceful, non-violent agitation in keeping with letter and spirit of the Constitution and following principles of Mahatma Gandhi adopted the peaceful methods for the achievement of their, demands. In view of the alleged discrimination meted out to them, they have resolved to struggle for creation of Ladakh Region as a Union Territory within the Union of India and parameters of the Constitution with the purpose to ensure that the discriminatory policies of the State of J. & K. are put to an end. It is alleged that the peaceful agitation of the Ladakhies was resolved to be suppressed by the State Government and its functionaries in furtherance of which respondent No.2 passed the, detention orders against the detenues referred to hereinabove which include Sh. Thupstan Chewang President of Ladakhi Budhist Association.

3. In response to a quary made by the Court an affidavit has been filed in support of the writ petitions stating that all Ladakhi Budhists were firm believers and practitioners of total and absolute secularism arid do not harbour any ill-will or malice against either Sunni Muslims or any other community, It is further, stated on oath that the Budhists have been engaged in a peaceful non-violent agitation to achieve their rights and have never indulged in any act of communalism whatsoever. The detenues are claimed to have the greatest respect to all faiths and religious and have further declared that they would not do nor have ever done any act to hurt any religions feelings of any community or an individual. The struggle launched by the Ladakhies is stated to be against the policies of the State Government and not against any community or any individual.

4. Despite opportunity granted no counter affidavit has been filed on behalf of the respondents. However the learned Government Advocate has placed on record parawise reply in these writ petitions which is not supported by any affidavit. In the interest of justice the parawise reply bas been allowed to be placed on record and the learned Government Advocate permitted to make submissions o

Click Here to Read the rest of this document

Cases Referred (1)

Login now and unlock premium legal research