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2010 DIGILAW 234 (JK)

Nazir Ahmad v. State

2010-04-30

GH.HASNAIN MASSODI

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1. The Constitution of India -- Article 22 (5) guarantees following two important rights to a person detained under a Preventive Detention Law:- 2. To be informed, as soon as may be of the grounds on which the order of detention is made, i.e. the grounds which led to the subjective satisfaction of the Detaining Authority; that preventive detention was required to be slapped on the detenue 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 presentation which on being considered may obtain relief to him. 3. Both the rights guaranteed under the Constitution, according to the petitioner have been violated in case of Nazir Ahmad Son of Sh. Ali Mohammad Resident of Bathoi Tehsil Mahore, District Reasi (herein after referred to as "detenue"), placed under preventive detention by District Magistrate -- respondent No.2 herein vide Order No. DM/INDEX /312 dated 14.05.2009. The petitioner -- father of the detenue, it need no emphasis, is interested in his life and liberty. The grounds urged in the petition are controverted by the respondents in their reply affidavit. 4. I have gone through the petition, counter affidavit filed by the respondent No.2, as also detention record made available by Counsel for the respondents. I have heard Counsel for the parties. Challenge to the detention order must succeed on the following grounds:- 1. The grounds of detention make mention of case FIR No. 18/2009 under 11/13/17/21, 40-(1)B of Unlawful activities Prevention Act, and registered against the detenue. But either copy of the FIR mentioned nor the material collected during the investigation by the Investigating Officer has been made available to the detenue. The endorsement record by the Executing Officer ASI Sh. Shafqat No. 7102 /NGO Police Station Thanamandi on the reverse of detention order does not any were indicate that the aforesaid material was furnished to the detenue at the time of execution of the detention warrant or immediately thereafter. It appears, that the, involvement of the detenue in case FIR 18/2009 weighed primarily with the Detaining Authority at the time the detention order was slapped on the detenue. It appears, that the, involvement of the detenue in case FIR 18/2009 weighed primarily with the Detaining Authority at the time the detention order was slapped on the detenue. The Detaining Authority was to furnish the copy of FIR, statements of witnesses recorded by the Investigating Officer under Section 161 Cr.P.C. and copies of seizure memo if any to the detenue so as to enable the detenue to make clear his stand and convince the Detaining Authority and thereafter the Government that the detention order was unwarranted and the apprehensions voiced in the detention order and echoed in the grounds of detention were misplaced. The Detaining Authority by withholding the aforesaid material on which admittedly reliance was placed while passing the detention order has violated the Constitutional and statutory safeguards guaranteed to the detenue under Article 22 (5) of the Constitution of India and under Section 13 of Jammu and Kashmir Public Safety Act, 1978. The detention order in question is bound to be quashed on this ground alone. While holding so, I draw support from law laid down in Dhannajoy Dass v. District Magistrate AIR, 1982 SC 1315; Sofia Ghulam Mohammad Bam v. State of Maharashtra and Others AIR, 1999, SC 3051; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others 2009 (I) S.L.J 219; and Tahir Haris v. State and Others AIR 2009 Supreme Court 2184. 2. The grounds of detention, so as to enable the detenue to make an effective representation against his detention, must be clear, specific and unambiguous, In case the grounds of detention suffer from ambiguity or are vague and sketch, the detenue is left guessing about the exact grounds that were considered by the Detaining Authority to arrive at a subjective satisfaction that apprehended activities of the detenue were likely to prejudice the security of the state or public order and that to prevent the detenue from indulging its activities it was necessary to place the detenue under preventive detention. In the present case a closer look at the grounds of detention leads to the conclusion that the grounds of detention in the present case are too general, vague and violate the Constitutional and statutory rights of the detenue to make an effective and meaningful representation against the detention. In the present case a closer look at the grounds of detention leads to the conclusion that the grounds of detention in the present case are too general, vague and violate the Constitutional and statutory rights of the detenue to make an effective and meaningful representation against the detention. The detenue is alleged to have been working "as a guide, harbourer and courier of hawala money of LET outfit and "found involved and abetting the terrorism by raising funds for the terrorists of LET outfit". The detenue is not informed for whom and when he acted as guide, harbourer or a Curier and how he was involved in adding and abetting terrorism or from whom he raised funds or what was meant by the alphabets LET. The detenue without being told the person(s) with whom he had associated or whom he had guided or harboured or for whom he acted as a courier can not expected to explain his stand and convince the Detaining Authority and thereafter the Government the he had no acquaintance with such person(s) or no chance to meet such person(s). Again the detenue is informed that he was motivated by one Mohammad Rafiq Alias Noman and code Abdul Rehman, the identity of Mohammad Rafiq alias Noman and another person Alias Noman, their parentage or place of residence is not disclosed to the detenue. How can detenue make a representation and persuade the Detaining Authority and the Government thereafter to believe that code Noman and code Abdul Rehman were not known to him or that the detenue had nothing to do with such persons unless and until all particulars regarding said persons are made available to the detenue. The detenue is alleged to have handed over Rs. 50,000/- to code Noman after collecting such amount from person code Rizwan, The ground again is vague and unspecific. These are some of the instances illustrative of the grounds of detention being vague and ambiguous. The respondents thus while formulating the grounds of detention, have violated the precious right of the detenue to make representation against his detention. It needs no emphasis that a detention order can not stand the legal scrutiny even where one amongst several grounds of detention is vague and sketchy. 3. The respondents thus while formulating the grounds of detention, have violated the precious right of the detenue to make representation against his detention. It needs no emphasis that a detention order can not stand the legal scrutiny even where one amongst several grounds of detention is vague and sketchy. 3. The Detaining Authority -- respondent No.2 otherwise did not inform the detenue that the detenue independent of his right to file representation against his detention to the Government, has also right to submit a representation to the Detaining Authority till the detention was considered by the Government and accorded approved. The respondent No.2 has in effect violated Constitutional and statutory rights of the detenue, guaranteed under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and others v. Santosh Shanker Acharya, AIR, 2000 SC 2504. 5. In the circumstances the petition is allowed and the detention order No.DM/index/312 DATED 14.5.2009 passed by the respondents directing preventive detention of Nazir Ahmad Son of Sh. Ali Mohammad Resident of Bathoi Tehsil Mahore, district Reasi is quashed. Resultantly, the detenue is directed to be let off, unless of course the detenue is required in any other case(s), justifying his continued custody/detention.