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TMI Blog1973 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... er is produced on the record. It is, however, not disputed that the said order was made by the District Magistrate Under Section 3(1)(a)(i) and (ii) of the Maintenance of Internal Security Act, 1971 (Act no. 26 of 1971) (hereinafter called the Act). The grounds of detention signed by the District Magistrate, Aligarh were served on the petitioner on June 17, 1972, pursuant to Section 8 of the Act. Those grounds read :- (1) That you have been exciting communal feelings amongst Muslims and feeling of disaffection towards the Government of India and of hatred to other communities. You have also been advocating use of force by Muslims in India to secure withdrawal of the A.M.U. (Amendment) Bill, 1971-now an Act. These actions, which are a threat to security of the State and the maintenance of public order, find support from the following instances :- (i) that you are organiser at Aligarh of Youth Majlis a paramilitary organisation which imparts training to Muslims in the use of lathi, swords and knives, etc. You are member of Al Jehad, an international Islamic movement. You are Naib Amir Ala Youth Majlis, U.P. (ii) You went to participate in Youth Majlis training camp at V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed that you are released on 25-6-1972 at 23.50 hrs. vide D.M. Aligarh Order dated 25-6-1972 on account of non-receipt of approval from State Government but you were detained in Jail as under trial under Rules 107/117, Cr. P.C. You may inform your relations or lawyer if you want to arrange your bail. Sd/- Superintendent, Distt. Jail, Aligarh. 6. A fresh order of detention was also passed on June 25, 1972. This order was made by the Governor of U.P. under Section 3(1) of the Act and was served on the petitioner on June 26, 1972 at about 3.30 p.m. It reads : Whereas the Governor of Uttar Pradesh is satisfied with respect to Sri Masood Alam son of late Sri Baboo Ayoob resident of Mohalla Bani Israilan, Aligarh City, that with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, it is necessary so to order :- NOW THEREFORE, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Maintenance of Internal Security Act,- 1971 (no. 26 of 1971), the Governor is hereby pleased to direct that the said Sri Masood Alam shall be detained under Sub-clause (ii) of Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an order of detention in such circumstances is an abuse and misuse of the provisions of the Act has only to be stated to be rejected. If the grounds are relevant and germane to the object of the Act then merely because the objectionable activities covered thereby also attract the provisions of Ch. VIII, Cr. P.C. the preventive detention cannot for that reason alone be considered to be mala fide provided the authority concerned is satisfied of the necessity of the detention as contemplated by the Act: see Sahib Singh Duggal v. Union of India: 1966CriLJ305 , Mohammad Salem Khan v. C.C. Bose AIR1972SC1760 and Borjahan Gorey v. The State of West Bengal: [1973]1SCR751 . The jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority. It is designed to prevent the mischief from being committed by depriving its suspected author of the necessary facility for carrying out his nefarious purpose. This jurisdiction is thus essentially different from that of judicial trials for the commission of offences and also from preventive security proceedings in criminal courts, both of which proceed on objective c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining authority is of opinion on grounds which are germane and relevant, that it is necessary to detain a person from acting prejudicially as contemplated by Section 3 of the Act then it is not for this Court to consider objectively how imminent is the likelihood of the detenu indulging in these activities. This submission is thus unacceptable. 9. The next point urged is that the petitioner had been served with the order of detention dated June 25, 1972 when he was in jail and that such service is invalid rendering the petitioner's detention void. This submission is generally unacceptable. There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if free, the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public order. The decision in Makhan Singh Tarsikka v. State of Punjab 1964CriLJ269 does not lay down the broad proposition canvassed. In that case which dealt with the Defence of India rules it was observed that Rule 30(1)(b) of these Rules postulates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary but it is for the detaining authority who has to arrive at a subjective satisfaction in considering the past activities and coming to his conclusion if on the basis of those activities he is satisfied that the activities of the person concerned are such that he is likely to indulge in prejudicial activities necessitating his detention. As observed in Ujjagar Singh v. State of Punjab [1952] S.C.R. 757 it is largely from prior events or past conduct and antecedent history of a person showing tendencies or inclinations of a person concerned that an inference can be drawn whether he is likely even in the future to act in a manner prejudicial to the public order. If the authority is satisfied that in view of the past conduct of the person there is need for detention then it could not be said that the order of detention is not justified. 11. The next point raised on behalf of the petitioner is that the earlier order of detention was either revoked or had expired with the result that unless the present detention pursuant to the order dated June 25, 1972 is pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the original order was made. The power of preventive detention being an extraordinary power intended to be exercised only in extraordinary emergent circumstances the legislative scheme of Sub-section 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond the maximum period fixed. In the present case it is not urged and indeed it is not possible to urge that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State Government, any fresh facts could arise for sustaining the fresh order of detention. The submission on behalf of the State that the petitioner's activities are so highly communal and prone to encourage violent communal activities that it was considered absolutely necessary to detain him in the interest of security of the State and maintenance of public order cannot prevail in face of the statutory restrictions and the guaranteed Constitutional right which is available to all persons. The rule of law reigns supreme in this Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner's detention Under Section 3(1)(a)-(i) and (ii) of the Act as amended by the Defence of India Act 42 of 1971. The grounds of his detention which were duly served on him Under Section 8 of the Act read as under :- 1. That you are a member of the Executive of the Muslim Majlis. You are also an active member of Youth Majlis. The Youth Majlis is being trained in the use of lathis, swords and knives as a fully militant organisation. You contribute and raise funds to illegally arm the organisation. You visited Pakistan in November, 1971 for arranging the transfer of funds collected by Shri Masood Alam in Pakistan to Aligarh for use by Youth Majlis for training volunteers in the use of arms and knives etc. You collected ₹ 700 for Youth Majlis from Varanasi, Pratapgarh and other places. 2. That you have extra territorial loyalties and are therefore a threat to security of India which is evident from the following instances :- (a) That you on 1-4-1971 listened to Pakistan Radio and propagated Pak policy towards Bangla Desh among the Muslims. You also propagated that India engineered the trouble. (b) On 19-10-71 you participated in private meeting of commander ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld fail to achieve any result even by any amount of sacrifice of bloodshed. You also remarked Hamari kom hamesha se talwar key saye me pali hai and as such no sacrifice was too grave for this occasion. (d) That on 25-5-72 along with Dr. Ahsan Ahmad attended a meeting of about 25 persons at the residence of Abdul Jalil where Dr. Ahsan Ahmad briefed the participants on the agitation, formation of action Committee and collection of funds in connection with the agitation against A.M.U. (Amendment) Bill, 1972. 4. In view of the above-mentioned grounds I am satisfied that you are likely to act in a manner prejudicial to the security of India, security of State and maintenance of public order and with a view to preventing you from acting in a manner prejudicial to the security of India, security of State and maintenance of public order it is necessary to detain you. 16. His detention was duly reported to the State Government on June 18, 1972 and the State Government gave its approval on June 25, 1972 which was duly reported to the Government of India on June 29, 1972. His case was sent to the Advisory Board on July 13, 1972 and the Board conveyed its decision on August 18/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the grounds, the petitioner has extraterritorial loyalties manifested by his anti-Indian and pro-Pakistan activities and also by inciting communal feelings amongst the Muslims during the period of tension and conflict between India and Pakistan on the question of Bangla Desh. The grounds further disclose, inter alia, (i) that the Youth Majlis engages in training Muslims in India in the use of lathis, swords and knives, and (ii) that the petitioner advised the commanders of the Youth Majlis in October, 1971 to be vigilant and remain prepared for any situation that might develop as a result of clash between India and Pakistan forces, at the same time suggesting invasion of India by Pakistan forces. An attempt has undoubtedly been made on behalf of the petitioner to show that the grounds on which the District Magistrate felt satisfied are nonexistent but as observed earlier it is not open to this Court to review and override the subjective opinion of the District Magistrate by going into the truth or otherwise of the facts accented by him. The facts contained in the grounds reproduced earlier seem to us to be clearly relevant for the purpose of forming an opinion that they endan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses to belong. This pamphlet which merely announced a meeting to be held on May 22, 1972 is, therefore, of little consequence. 18. The contention that the petitioner is a Muslim theologist highly qualified in Muslim theology, assuming it to be true, is also unhelpful to the petitioner as the impugned order is made on the basis of his activities which are considered clearly prejudicial to the maintenance of public order and security of State. His learning as a 'theologist is wholly immaterial. It neither places him above the law nor does it displace or detract from the opinion of the District Magistrate with respect to his activities and their effect. On the contrary it has to be borne in mind that when a person professing to be learned in religious theology encourages defiance of law in the name of religion then ignorant and credulous people are more likely to be misled and swayed by religious passions and sentiments. Such activities naturally have greater potentiality for prejudicially threatening the maintenance of public order. 19. According to the writ petition the petitioner is an active member of the Muslim Majlis and also a member of the Youth Majlis. He was arres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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