LexG. M. SHAH versus STATE OF JAMMU & KASHMIR
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1104
G. M. SHAH
I'.
STATE OF JAMMU & KASHMIR
October 30, ~ 979
[V. D. TULZAl'URKAR & E. S. VENKATARAMIAH, JJ.]
Ja1nmu and Kashmir Public Safety
Scope of-"Law and Order," "Public
MeClning of.
Act, 1978 Sections 8(2)
Order,"
"Security
of
pnd 8(3)-
the State"-
The petitioner'$ son (the detenu) was detained under section 8(2) of tJie
Jammu end Kashmir Public Safety Act, 1978 by an order of
the
District
Magistrate, Anantnag, Sections 8(1)(")(1) and 8(2)2 of the Act state that
the· Government or the District Magistrate may, if satisfied with respect to
any pers.on that with a view to preventing him from acting in any
manner
prejudiciel to the security of the State or the maintenance of the public order,
make an order directing that such person be detained.
The detenu was informed that the order of detention
had
been passed
with a view to preventing him from acting in any :rllta11Iler prejudicial to "the
maintenance of public order'', The grounds of detention amongst others stated
that the detenu had (i) indulged in subversive activities (ii) organised the
burning of religious places to create chaos in the State
(iii)
disturbed the
public order (iv) tried to elicit public opinion in favour of a person sentenced
to death land that his remaining at large was prejudicial to the
maintenance
of public order and also the "security of the State".
The petitioner challenged the grounds of detention as vague.
Allowing the petition under Article 32 of the C-0nstitution and
directing
the release of the detenu forthwith.
HELD : An attempt on the part of any citizen to elicit public opinion in
favour of a person who has been sentenced to death and to save him .from the
~ows cannot be considered as acting in any
manner
prejudicial
to the
security of the State because it cannot be considered as an attempt to over-
throw or overawe the Government established by law in the State. The fact
that the ·detenu had sent hand~bi11s and booklets to arouse the sentiments- of
the people against the proposed execution of Z. A. Bhutto ctinnot be considered
as an act prejudicial to the security of the State because the State of J ammu
and Kashmir had nothing to do with the
proposed
execution. The other
grounds are also ·vague in so far us the question of -security of the· State ~n
cerned. [ll ll B-E]
A combined reading of the order of detention and the grounds
furnished
to the detenu shows that at the time \Vhen the order was made, . the District
l\iagistrate either had no material relevant to the security of the
State on
\Vhich he could- act or even if he had information of those grounds, he did
not propose to act on it. He, however, tried to support the order of deten-
tion by stating in the course of the grounds that by the detenu remainidg et
large, the security of the State was likely to be prejudiced. [ll ll G-H]
G. M. SHAH v. JAMMU & KASHMIR (Venkataramiah, !.)
11 OS
The expressions "law and order'', "public order" and "security
of
the
~
State" are distinct concepts though now
always
separate. Whereas
every
bre3.ch of peace IIDy amount to disturbance of law and order,
every such
breach does not amount to disturbance of public order and every public dis-
order may not prejudicially affect the "security of the State."'
[1112 A-Bl
Ramesh Thapper v. The State of Madras, [1950] S.C.R. "594
at p.
600
applied.
1J
An act may affect law and order but not public order just as an act n1ay
affect public order but not security of State. lt is for this rea<Jon that the
Act defines the expressions "acting in any manner prejudicial to the security
. of the State" and "acting in any manner prejudicial to the maintenance of
public order' separately. An order of detention made either on the basis
that the detaining authority is satisfied that the person against who1n
the
C
order is being made is acting in any manner prejudicial to the
security of
the State or on the basis that he is satisfied that such person is
acting in
any manner prejudicial to the maintenance of public order but which
is
attemp~ed to be supported by placing reliance on both the bases in the grounds
furnished to the detenu has to be held to an illegal one.
[!113 C-D]
Dr. Ram Manohar Lohia v. State of Bi/tar & Others, [1966] 1 S.C.R. 709.
[)
Bhupal Chandra Ghosh v. Arif Ali & Others [1974] 2 S.C.R. 277 and
Satya Brata Ghose v. Arif Ali & Others A.l.R. 1974 S.C. 258 followedExcerpt shown. Read the full judgment & AI analysis in Lexace.