ABDUL GHANI versus STATE OF JAMMU & KASHMIR

Citation: [1971] 3 S.C.R. 275 · Decided: 18-12-1970 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
ABDUL GHANI 
v. 
STATE OF JAMMU & KASHMIR 
December 18, 1970 
275 
[S. M. SIKRI, V. BHARGAVA AND I. D. DuA, JJ.) 
Constitution of India, 1950 (as applied in Jammu and Kashmir) Art. 
35(c)-Effect on petitioner's right to move Supreme Court under Art. 32. 
Jammu and Kashmir Preventive Detention Act, 1964 ss. 3(2), 5 and 
proviso to s. 8-Direction not to disclose grounds of detention-If copy of 
direction should be served-'Acting in any manner, if takes in 'acting in 
a manner'-Mistakes in direction, effect of-'/nterest of secruity of State', 
if takes in 'public interest'. 
By an order under s. 3(2) read with s. 5 of the Jammu and Kashmir 
Preventive Detention Act, 1964, dated 9th May' 1970, the petitioner was 
detained on 22nd May, 1970. On the same day, in pursuance of a direc-
tion made by the District Magistrate on 9th May 1970, under the proviso 
to s. 8, the peiitioner was info'fmed _that it was against th~ interests of ~e 
security of the State to disclose to him the grounds on which the detenbon 
order was made. The detention was confirmed by the State Government. 
In a petition under Art. 32, 
HELD : (!)(a) The introduction of the provision contained in Art. 
35(c), when applying the C-Ons:itution to the State of Jammu and Kashmir 
did not in any way affect the right of a citizen of Jammu and Kashmir to 
move the Supreme Court of India for an appropriate writ under Art. 32. 
Its effect was only that when approaching this Court the detenu could not 
challenge the validity of the Act on the ground that any of its provisions 
contravened Art. 
22. 
Therefore, it has no bearing on Art. 32(4). 
[278 G-H] 
(b) Further, under Art. 370 the President is given full discretion to 
apply the Constitution with such exceptions and modifications as he may, 
by Order, specify. At the time of applying the Constitution, no fundamen-
tal rights existed in the State of Jammu & Kashmir and they came into 
existence in the modified form only by virtue of the Order of the President 
applying the Constitution. Such a modification at the initial stage cannot 
be challenged on the ground that it abridges any of the fundame11tal rights. 
[279 A-DJ 
(2) When the petitioner was informed that it was not in the public 
interest to disclose the grounds to him there was no need to serve on him 
the copy of the direction under which he was so informed. [279 F-G] 
(3) The present case was not a case where the District Magistrate 
could be held to have passed the order without any material at all. The 
order recites that the District Magistrate is satisfied that it is necessary to 
detain the petitioner wi:h a view to preventing him 'from acting in a manner 
prejudicial to the secruity of the State. 
That the satisfaction was based 
on' ma:erials is clarified by the order of the Government confirming the 
detention which mentions that the District Magistrate had with his report 
sent to the Government the ground' on which he made the order as well as 
other relevant particulars. [280 C-E] 
( 4) The expression 'acting in any manner' used in the Act covers a 
case where the satisfaction of the District Magistrate is that the person, in 
respect of whom the order is going to be made, is to be prevented from 
276 
SUPREME COURT REPORTS 
[1971] 3 s.c.R. 
'acting in a manner' prejudicial to the security of the State. The District 
Magi,crate, by using t.1e word "a' instead of word 'any' as used in the 
statute has, taefeto1e, not made an order which is outside the scope of the 
statute. [2d0 G-HJ 
(5) The order of detention under s, 3 and the direction under the pro-
viso to s. ~ were_pctss..:d oy tae D1stnct Magistrate on 9tn May, out the peti. 
A 
tioner was actually detai,1ed on 2Znd May. The District Magistrate com-
B 
-. 
mttted a mistake oy rerer .ing to the petitioner as a person wllo "has been 
detained", m the dcrectcon, but that wou1d not imply that the.detention was 
illegal. [281 C-B] 
( 6) The proviso to s, 8 uses the words 'public 'interest', Any action 
in th' interest of the security of the State is clearly in public interest and 
so the direction was fully covered by the proviso. [281 FJ 
ORIGINAL JURISDICTION : Writ Petition No. 384 of 1970. 
Petition u.nder Art. 32 of the Constitution of India for a writ 
in the nature of habeas corpus. 
S, Lakshminarasu, for the petitioner. 
R. N. Sachthey, for the respondent. 
The Judgment of the Court has delivered by 
Bhargava, J. 
Abdul Ghani has filed this 
pellllon und

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