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2010 DIGILAW 108 (JK)

Mohd. Yousuf Mir v. State

2010-03-04

GH.HASNAIN MASSODI

body2010
1. The petitioner through the medium of instant petition throws challenge to the order No. DMS/II/271-75 dated 29th September 2009 whereby the respondent No. 2 in exercise of powers under Section 8 of J&K Public Safety Act 1978, has ordered preventive detention of the Mohammad Yousuf Mir Son of Ghulam Qadir Mir Resident of Ratnipora Shopian at present Natipora, Srinagar (hereinafter referred to as "detenue") and directed the detenue to be lodged in Kotbalwal Jail Jammu. It appears, that the detenue was earlier placed under preventive detention vide order No. DMS/PSA/29/2008 dated 29th September 2008 (Annexure-A). The detention order was challenged in Habeas Corpus petition No. 245 of 2008, allowed by this Court on 4th February 2009 and the detenue (Annexure-C) directed to be released from custody forthwith. The detenue claims to have been re-arrested in June 2009, kept in detention in various police stations and interrogations centres where-after the detenue vide order No. DMS/PSA/08/2009 dated 8th June 2009 dated 8th June 2009 was placed under preventive detention. The detenue once again approached this Court with Habeas Corpus petition registered as HCP No. 101/2009. The petition was decided on 16.9.2009 (Annexure-G). The detention order was quashed and the detenue directed to be released from the custody. The detenue, allegedly was not released by the respondents and after having been detained in different police stations, was once again put under preventive detention under the order impugned herein (Annexure H). 2. The detention order No. DMS/PSA/50/2009 dated 29.10. 2009 is challenged on the following grounds:- (i) That the material claimed to have been gone through and relied upon by the respondent No. 2 while making the impugned detention order was not supplied to the detenue to enable the detenue make a representation against his detention. (ii) That the respondents did not furnish translated copy of the grounds of detention to the detenue to enable the petitioner/detenue to go through and understand the grounds of detention and make a representation to the competent authority against the detention. (iii) That the respondent No. 3 while executing the impugned detention order did not read over and explain the grounds of detention to the detenue in the language he understands and resultantly the detenue was not able to make an effective representation against the order of detention to the competent authority. (iii) That the respondent No. 3 while executing the impugned detention order did not read over and explain the grounds of detention to the detenue in the language he understands and resultantly the detenue was not able to make an effective representation against the order of detention to the competent authority. (iv) That the respondent No. 2 unmindful of his legal duty to inform the detenue that he can make a representation to the respondent No. 2 as also the Government against his order of detention, failed, and avoided to inform the detenue that the detenue can make such a representation to the respondent No. 2 as well. (v) That after this court quashed the order of detention No. DMS.PSA/08/2009 dated 8.6.2009, the detenue in violation of the court direction was kept in detention in police stations including Central Jail Srinagar and was never released from detention; that the grounds spelt out in the impugned order of detention that the detenue after his release in consequence of court order dated 8th June 2009 continued to peruse secessionist activities was palpably baseless and unfounded. (vi) That even if, it was assumed that the detenue after his release pursuant to High Court order dated 8.6.2009 was released and thereafter arrested on 8th October 2009 in connection with FIR 155/2008 Police Station Sadder, as the detenue had not applied for bail nor was there any material available to the respondents to indicate that such a bail application was presented, there was no reason to slap preventive detention on the detenue. (vii) That the impugned detention order was not sustainable under law, in as much as the detention order was made on the ground of apprehended activities of the detenue prejudicial to the maintenance of the security of State and the respondent No. 2 lacked power and jurisdiction to make detention on the said ground. That the petitioner/detenue having been admittedly booked in a substantive offence (FIR 155/2008 Police Station Sadder) could not be put under the preventive detention in absence of compelling reasons to be spelt-out in detention order and as no such compelling reasons were disclosed in the detention order, the detention order was thus made in clear violation of law. That the petitioner/detenue having been admittedly booked in a substantive offence (FIR 155/2008 Police Station Sadder) could not be put under the preventive detention in absence of compelling reasons to be spelt-out in detention order and as no such compelling reasons were disclosed in the detention order, the detention order was thus made in clear violation of law. (viii) That the grounds of detention relied upon by the respondent No. 2 to make the order in question are stale in point of time, vague, ambiguous, uncertain and indefinite and the detenue has been deprived of his right to make an effective representation against the detention order. (ix) That as per the information of the detenue the respondents after detaining the detenue did not follow the mandate of J&K Public Safety Act and the constitutional safeguards available to the detenue. 3. The respondent No. 2 in his Counter Affidavit has denied that any constitutional, fundamental or statutory rights of the detenue were violated by the impugned detention order and insisted that the activities of the detenue are highly prejudicial to the Acts Security of the State. It is stated that the grounds of detention were read over and explained to the detenue at the time of execution of order in question, in token whereof the detenue put his signatures on the detention warrant. It is further stated that the detenue was also informed about his right to make representation against his detention to the Government. The respondent No. 2 further claimed that the preventive detention of the petitioner/ detenue was approved by the Government within the prescribed time frame whereafter the record was submitted to the State Advisory Board in compliance of Section 15 of Jammu and Kashmir Public Safety Act 1978, and that the detention was approved by the Advisory Board. The Government is said to have on receipt of opinion of the State Advisory Board confirmed the detention order. 4. I have heard, the Learned Counsel for the parties and have gone through the record including the detention record made available by Learned Additional Advocate General for perusal. 5. The jurisdiction to order preventive detention has been described as "Jurisdiction of suspicion" implying thereby that unlike punitive detention or custody pending trial, preventive detention is based on mere suspicion or apprehension of the detenue indulging in activities prejudicial to Public order or security of the State. 5. The jurisdiction to order preventive detention has been described as "Jurisdiction of suspicion" implying thereby that unlike punitive detention or custody pending trial, preventive detention is based on mere suspicion or apprehension of the detenue indulging in activities prejudicial to Public order or security of the State. The preventive detention law enables the designated authority to put under detention a person without formal charge or trial. There are thus more chances of the power being abused and misused. As preventive detention laws and preventive detention do not go hand in hand with the ideals of personal liberty, the courts have always subjected the detention laws, and the preventive detention ordered there-under, to close scrutiny. Though the Court may not and should not step in the shoes of the detaining authority to assess and evaluate whether the grounds for preventive detention were adequate and sufficient to prompt the detaining authority to order detention yet the Court is under constitutional obligation to see whether the constitutional safeguards and the safeguards provided under the preventive detention law have been observed in letter and spirit. The Supreme Court in AIR 1953 SC 318 observed:- ".... Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court". 6. The Courts have, times without number impressed upon the authorities competent to order preventive detention to respect the constitutional mandate and strictly observe the constitutional and statutory safeguards available to the detenue. In Union of India v. Chaya Ghoshal, (2005) 10 SCC 1997 the Supreme Court emphasizing respect for such safeguards has observed: - "......the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory." 7. In Union of India v. Chaya Ghoshal, (2005) 10 SCC 1997 the Supreme Court emphasizing respect for such safeguards has observed: - "......the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory." 7. The rights guaranteed to a person placed under preventive detention have been spelt out in Dhananjoy Dass v. District Magistrate AIR 1982 SC 1315, as under;- "The law is by now well settled that the detenue has two rights under Article 22(5) of the Constitutional) (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 representation against the order of detention, that is to be furnished with sufficient particulars to enable him to make representation which on being considered may obtain relief to him..........." 8. The right to be informed of the grounds on which the order of detention is made and the right to make representation against the order of detention, are two independent rights. In order to make the right to representation against the order of detention effective and meaningful, it is imperative for the detaining authority to make available the material facts on which the authority arrived at subjective satisfaction that the person on whom the preventive detention is slapped, is required to be placed under preventive detention. The Supreme Court in AIR 1992 SC 1315 further observed: "........... therefore, 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 is how the facts from which the inference is drawn also become a part and parcel of the grounds." 9. There can be no disagreement that the Court lacks jurisdiction to take upon, itself the responsibility of assessing and evaluating the material facts that persuaded the detaining authority to pass detention order, to conclude whether such material was sufficient. There can be no disagreement that the Court lacks jurisdiction to take upon, itself the responsibility of assessing and evaluating the material facts that persuaded the detaining authority to pass detention order, to conclude whether such material was sufficient. The Court nonetheless is under constitutional obligation to scrutinize the material to find-out whether rights and safeguards guaranteed under Art. 22 of the Constitution have been followed respected and adhered. Where the grounds that weighed with the detaining authority to order detention are vague, uncertain and ambiguous, the right of the detenue to make representation against his detention is to be taken to have been infringed and the constitutional mandate violated. 10. In Dr. Ram Krishen Bhardwaj v. State of Delhi and Ors. AIR 1953 SC 318, the Apex Court held: ".......... the petitioner has the right, under Article 22 (5), as interpreted by this Court by a majority, to be furnished with the particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of the opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained..........." 11. It follows that even if one amongst various grounds relied upon by the detaining authority is vague, the right of detenue to make representation against his detention is infringed as it impinges upon fundamental rights of the detenue guaranteed under Article 22(5) of the Constitution. 12. In the case in hand the grounds of detention appended to the detention order (Annexure to the petition), are substantially similar as where pressed into service by respondents to make earlier detention orders dated 29th September 2008 and 8th June 2009 . The first three paras of grounds of detention, trace the alleged association of the detenue with the secessionist parties, like the grounds of detention made use of previously (Annexure A&B). 13. The concluding Paras on page 2 of the grounds of detention relied upon to slap preventive detention on the detenue third time in a row spell out the grounds as under:- (i) That, be it violent protest, media campaigns or attending the various secessionist programmes, detenus role has always been found antinational having a direct bearing upon the territorial integrity of the country. (ii) That the detenue has been found indulging in activities which promote the secessionist ideology and at the same time the detenue has been found implementing secessionist programmes on ground by motivating and instigating the general public to resort to a violence. (iii) That the detenue after his release pursuant to the order quashing detention did not desist from activities and instigating the youth to violence. (iv) That the detenue was arrested on 8.10.2009, in connection with case FIR No. 155/2008 under Section 307, 147, 148, 149, 336, 427, 341 RPC Police Station Sadder and there was a well founded apprehension that the detenue if admitted to bail will again indulge in subversive activities prejudicial to the maintenance of peace and having direct bearing upon the maintenance of the security of the state. 14. A bare look on the grounds of detention, claimed to have persuaded the respondent No. 2 to derive subjective satisfaction that the detenue was required to be put under preventive detention to prevent the detenue from acting in a manner prejudicial to the security of the State, reveals that the grounds are vague, ambiguous in definite and uncertain and the detenue has been deprived of his right to make an effective representation against his detention. The fist ground speaks of violent protests, media campaigns and secessionist programmes without giving details of such protests, campaigns and secessionist programs. The second ground refers to the activities of the detenue after the detenue was released and his continued association with the secessionist activities, without being specific about the activities attributed to the detenue so that the detenue could come forward and make a representation against his detention. The third ground voices the apprehension that the detenue may rejoin the secessionist, forces if enlarged on bail in case FIR 155/2008 Police Station Sadder without dilating on the fact whether the detenue had at all made an application for bail. The grounds are thus so vague and ambiguous that it would not be possible for a persons of ordinary prudence to make an effective representation against the detention or explain his stand. The detenues right to make effective representation has thus been grossly violated. 15. The grounds are thus so vague and ambiguous that it would not be possible for a persons of ordinary prudence to make an effective representation against the detention or explain his stand. The detenues right to make effective representation has thus been grossly violated. 15. In addition to the grounds of detention being vague and ambiguous that have left the detenue guessing about exact omissions and commissions attributed to the detenue, the detenue has not been furnished the material that was claimed to have been perused and relied upon by the respondent No. 2 while making the detention order in question. Though a mention is made of FIR 155/2008 Police Station Sadder in the grounds of detention, copy of FIR does not appear to have been handed over to the detenue. The detention order makes a reference to "material record" and other "connecting documents" but the detention record reveals that no such "material record" or "connected documents" where ever furnished/made available to the detenue. This has again seriously prejudiced the right of the petitioner to make a representation against the detention. The respondents by keeping back the aforesaid material have infringed the detenues rights guaranteed under Art. 22 of the Constitution. 16. In Sofia Ghulam Mohamad Bam v. State of Maharashtra and Others AIR 1999 SC 3051.it has been laid down: "...... The right to be communicated the grounds of detention flows from Article (22 (5). While the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and the copies thereof are supplied to the person detailed in his own language......" 17. The principle has been reiterated in Union of India v. Ranu Bhandari 2008 Cr.L.J. 4567 in following words; 25. The principle has been reiterated in Union of India v. Ranu Bhandari 2008 Cr.L.J. 4567 in following words; 25. We have indicated hereinbefore that the consistent view expressed by this court in matters relating to preventive detention is that while issuing an order of detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. It has been consistent view that when a detention order is passed all the material relied upon by the Detaining Authority in making such an order, must be supplied to the detenue to enable him to make an effective representation against the detention order in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. These have been recognized by this Court as the minimum safeguards to ensure that preventive detention laws, which are on evil necessity, do not become instruments of apprehension in the hands of the concerned authorities or to avoid criminal proceedings which would entail a proper investigation." 18. The respondent No. 2 by ignoring to inform the detenue that the detenue may make a representation to the respondent No. 2 against the detention order in addition to the representation to the Government has violated the constitutional safeguards available to the detenue. Reference in this regard may be made to law laid down in AIR 2000 SC 2504. 19. For the reasons discussed above, the detention order No. DMS/PSA/50/2009 dated 29.10.2009 impugned in the present petition cannot stand legal scrutiny and is liable to be quashed. 20. The detention order, accordingly for the reasons discussed, is quashed and the detenue namely Mohammad Yousuf Mir Son of Gh. Qadir Mir Resident of Ratnipora Shopian at Present Natipora Srinagar be directed to be released forthwith unless, of course, the detenue is required in connection with other case.