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2009 DIGILAW 421 (JK)

Fahmeeda v. State

2009-08-27

SUNIL HALI

body2009
1. In terms of order no. DMS/PSA/18/2009 dated 11.06.2009, the petitioner has been detained under the provisions of Jammu and Kashmir Public Safety Act and has been lodged in District Jail, Jammu. The detention order reveals that she is affiliated with Dukhtarian-i-Milat, a women secessionist organization, which advocates the merger of State of Jammu and Kashmir from Union of India and to annex it with Pakistan. Influenced by the secessionist ideology and being a member of the movement, she has been indulging in activities, which are prejudicial to the security of the State. The said organization has engaged itself in illegal activities like throwing of acid upon women for implementing their own Islamic code. It reveals that during the land row agitation in the year 2008, the detenu was found instigating the general public in resorting to violence and instigated the women to participate in the illegal agitation. 2. It is further revealed from the detention order that on 31.5.2009, violent protests were organized at the behest of said organization, of which detenue was also a part. The said organization gave a call for women to assemble in Iddgah on 07.06.2009, which resulted in enforcing shutdown in the area and disrupting the traffic. The object of the organization is to resort to agitations in order to highlight the Kashmir issue and to press for the demand of secession of State of J&K from Union of India. Being part of the said organization, the detenu is stated to have played a vital role. It is in these circumstances that the respondents have detained the detenue under the J&K Public Safety Act, 1978. 3. Mr. Qayoom, appearing for the petitioner has questioned the order of detention on the following grounds: 4. That the material on the basis of which the detention order has been passed, as also the dossiers and connected documents have not been served to the detenue alongwith the detention order. 5. The grounds of detention are vague and indefinite which debar the detenue in making representation as contemplated under Article 22 (5) of the Constitution. 6. On the other hand, stand of the respondents is that detenue has been indulging in the activities, which are prejudicial to the security of the State. 5. The grounds of detention are vague and indefinite which debar the detenue in making representation as contemplated under Article 22 (5) of the Constitution. 6. On the other hand, stand of the respondents is that detenue has been indulging in the activities, which are prejudicial to the security of the State. The grounds of detention of the petitioner are unambiguous and same is reflected from the fact that detenu has been involved in the activities, which are prejudicial to the maintenance of security of State. 7. I have heard learned counsel for the parties. 8. Undoubtedly, there is no dispute that State has power to detain a person by resorting to preventive detention, but this power of detention is not absolute and all the procedural safeguard are required to be complied with. 9. Law is now well settled that a detenu has two rights under Article 22 (5) of the Constitution(1) to be informed as soon as may be, of the grounds on which the order of detention is made, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. Therefore, in this view of the legal position, if the grounds are vague and indefinite that would amount to an infringement of the second right of the petitioner. It is by virtue the second right that the detaining authority has to supply material facts on the basis of which subjective satisfaction was derived while passing the order of detention. 10. Applying the aforementioned proposition of law to the present case, it is seen that material on the basis which subjective satisfaction was derived while passing the order of detention has not been served to the detenue. 10. Applying the aforementioned proposition of law to the present case, it is seen that material on the basis which subjective satisfaction was derived while passing the order of detention has not been served to the detenue. The grounds of detention make generalize assessment about the role of detenue who is stated to be affiliated with the said organization, which is involved in the activities which are prejudicial to the security of the State and what has been the role of the detenue in organizing the protests and instigating them to go for hartal has not been disclosed in the detention order. By showing her association with the organization which is involved in the activities, which are prejudicial to the security of State is not sufficient to order his detention. Detention order per se is vague and indefinite. Mere reading of the detention order would reveal that the grounds of detention are vague and indefinite. 11. I fortify my view with the judgment of the Apex Court, reported in AIR 1982 Supreme Court 1315, titled, Dhananjoy Das vs. District Magistrate in which the Apex Court has held as under: "The law is by now well settled that a detenu has tow rights under Art. 22(5) of the Constitution (1) to be informed as soon as may be, of the grounds on which the order of detention is made, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non existent ground amount other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. Therefore in this view of the legal position if the grounds are vague and indefinite that would amount to an infringement of the second right of the appellant. Therefore in this view of the legal position if the grounds are vague and indefinite that would amount to an infringement of the second right of the appellant. It is by virtue of the second right that the detaining authority has to supply the material facts on the basis of which subjective satisfaction was derived for passing the order of detention and this how the facts from which the inference is drawn also become a part and parcel of the grounds. The question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague is one case may not be so in similar circumstances of the other case. If the basic facts have been given in a particular case constituting the grounds of the detention which enable the detenue to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention." 12. For the reasons stated hereinabove, I allow this petition and quash the order no. DMS/PSA/18 dated 11.6.2009. The respondents are directed to set the detenu at liberty. Before parting with the judgment, it has been seen that while passing the order of detention, the District Magistrate invariably show there ignorance regarding the manners in which detention order is required to be passed. The order of detention has the effect of taking away the liberty of a person. Such powers have to be exercised with proper care and caution. The persons may be generally involved in the activities, which are prejudicial to the security of the State are let off not because the grounds and material is not sufficient, but because the manner in which orders are passed by the District Magistrates. In both the cases, violence is done to the Constitution and liberty of person. The District Magistrate before issuing order of detention must ensure that all the safeguards enumerated therein are not violated. Disposed of.