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2010 DIGILAW 235 (JK)

Mohd. Asrar-ul-Haq v. State

2010-04-30

GH.HASNAIN MASSODI

body2010
1. The petition in hand throws challenge to order No. 07/PSA/2009 dated 1.10.2009 passed by District Magistrate Jammu--respondent No. 2 whereby the respondent No. 2 has placed Sh. Mohammad Asrar-Ul-Haq Son of Bashir Ahamad Zargar Resident of Neeli Tehsil Gandoh Doda (herein after called as detenue) under preventive detention and later directed to be lodged at Central Jail Kotbalwal Jammu. The detention order is questioned on the grounds that order suffers from non-application of mind by Detaining Authority, that the grounds of detention and other material were not provided to the detenue; that the detenue was not informed that he had a right to make representation against the detention order and thus Constitutional and statutory safeguards available to the detenue stand violated with impunity. 2. The respondents have in their Counter Affidavits disputed the averments made in the petition and insisted that the detenue had associated with terrorists. It is pleaded that the detention order and grounds of detention were handed over to the detenue at the time of execution of detention warrant after same were read over and explained to the detenue. The detention order is said to have been approved by the Government in terms of Government order No. Home/PB-V/1842/2009 dated 5th October 2009 and that the State Advisory Board also approved the detention order. 3. Heard and Considered. 4. The petition questioning the detention order in question must succeed on following grounds:- (1) The detention order and grounds of detention were not handed over to the detenue at the time of execution of the detention order or immediately thereafter so as to enable the detenue to make a representation against his detention. The detention record made available by Learned Additional advocate General reveals that all that was done by Inspector Mohammad Showket No. 4445-NGO SHO Police Station Pirmitha Jammu, was that the contents of detention warrant as well as grounds of detention were read over to the detenue in token whereof the detenue put his signatures on the endorsement made by Executing Officer in this behalf. It is no where mentioned in the aforesaid endorsement that the copy of the detention order or the grounds of detention were made available to the detenue. This apart, the grounds of detention refer to case FIR NOs. It is no where mentioned in the aforesaid endorsement that the copy of the detention order or the grounds of detention were made available to the detenue. This apart, the grounds of detention refer to case FIR NOs. 103/2007 under Section 302 /307 RPC, 57/2007 under Section 302 RPC case FIR 61 of 2008 and registered at Police Station Gandoh District Doda, admittedly taken into consideration by the Detaining Authority while passing the impugned detention order. The aforementioned FIRs reflected in the grounds of detention are said to be either under consideration before the Competent Court(s) or under investigation. The record reveals that copies of the FIRs or the material collected during the investigation was not supplied to the detenue at the time of execution of detention order or immediately thereafter so as to enable the detenue to make an effective representation against the detention order. The grounds of detention also make mention of case FIR 38/2009 under Section 13, 17, 21 Unlawful activities Police Station Pirmitha, a copy whereof has also not been provided to the detenue, In other words the material relied upon by the Detaining Authority to arrive at subjective satisfaction that the preventive detention of the detenue was necessary so as to prevent the detenue from indulging in activities prejudicial to the security of the state or public order was not provided to the detenue. The detenue obviously was not in a position to explain the stand and make an effective representation to the Detaining authority and thereafter to the Government to convince the Detaining Authority and the Government that the apprehensions nursed by them regarding the activities of detenue were devoid of any basis and misplaced. Article 22(5) Constitution of India incorporates various safeguards against misuse of the preventive detention laws. It confers a right on the detenue to make a representation against his detention order immediately after the detention order is made so as to enable the detenue to dispel all doubts regarding his apprehended activities. The safeguards are echoed in Section 13 of Jammu and Kashmir Public Safety Act, 1978. It hardly needs any emphasis that failure on the part of Detaining Authority to provide the material relied upon to issue the detention order, to the detenue prevents detenue from making a meaningful use of the Constitution and statutory safeguards. The detention order is to fail on this ground alone. It hardly needs any emphasis that failure on the part of Detaining Authority to provide the material relied upon to issue the detention order, to the detenue prevents detenue from making a meaningful use of the Constitution and statutory safeguards. The detention order is to fail on this ground alone. The view taken finds support from 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 are vague and ambiguous. A bare look at the grounds of detention reveals that the ground are vague and sketchy leaving the detenue guessing about exact facts that weighed with Detaining Authority at the time the detention order was made. The detenue is said to have joined HM associates in receiving and conveying militant messages "to and fro" without specifying the particulars of the associates or the militants to whom messages were being sent by detenue. The detenue is said to have been contacted by a HM "OGW" without specifying the person who had contacted the detenue . These are only few instances to illustrate that the grounds of detention are not free from ambiguity and are unspecific. It is well settled law that even where amongst various grounds of detention is vague and ambiguous. It is apt to point out that right to make representation against detention, is rendered in effective and meaningless if the grounds of detention are vague and ambiguous, because the detenue is handicapped to make an effective representation against this detention. If a detenue is informed that he associates with a "undesirable element and the identity of such undesirable element is not made clear, it would not be possible for the detenue to explain that he had nothing to do with the person with whom he was alleged to have associated for that such a person did not exist or was not pursuing the activities that were attributed to him. The conclusions that vague and ambiguous grounds of detention render the detention order violative of Constitutional provisions is supported by law laid down in Dr. The conclusions that vague and ambiguous grounds of detention render the detention order violative of Constitutional provisions is supported by law laid down in Dr. Ram Krishan v. The State of Delhi and others, AIR 1953 SC 318; Chaju Ram v. State of J&K, AIR 1971 SC 263; Mohd Yousuf Rather v. State of J&K, AIR 1979 SC 1925; and Syed Aasiya Indrabi v. State of J&K and others, 2009 (I) SLJ 2009 219. (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. 5. 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. 6. In the circumstances the petition is allowed and the detention order No. 07/PSA/2009 dated 1.10.2009 passed by the District Magistrate Jammu/ respondent No.2, directing preventive detention of Mohammad Asrar-Ul-Haq Son of Bashir Ahamad Resident of Neeli Tehsil Gandoh Doda, 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.