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2010 DIGILAW 350 (JK)

Mohd. Shafi Dar v. State Of J&K

2010-06-05

Hasnain Massodi

body2010
1. The petitioner is father of one Mohammad Shafi Dar placed under preventive detention vide order No.DMS/PSA/79/2009 dated 20.2.2010. The petitioner throws challenge to the detention order on the following grounds:- (1) That the detenue was arrested in connection with FIR No.16/2010 P/S Nowhatta and thereafter placed under preventive detention and directed to be lodged in District jail Udhampur; that the detenue neither at the time of his arrest nor on the date preventive detention was slapped on the detenue, was provided copy of the grounds of detention that led to the detention order. (2) That the non application of mind is writ large on the detention order in question in as much as exclusive reliance has been placed on the report of Sr. Superintendent of Police. (3) That there was no material before the Respondent No.2 to derive subjective satisfaction that the alleged activities of the detenue were likely to prejudice public order. (4) That the respondent No. 2 failed to make available the copies of the material gone through and relied upon by the detaining authority while passing the detention order. (5) That the respondents while placing the detenue under preventive detention, have violated the safeguards guaranteed under Article 22 of the Constitution of India. 2. The respondents in their reply have denied that any fundamental, constitutional or statutory rights of the detenue were violated. The activities of the detenue are said to have been found to be highly prejudicial to the security of the State. The detenue according to the respondents was duly informed about the grounds for his preventive detention and also his right to make the representation to the Government against the detention order. It is insisted that grounds of detention were read over and explained to the detenue and the detenue was informed of his right to make a representation against his preventive detention. The grounds set out in the petition are labeled as misconceived, untenable and devoid of any merit. Heard and considered. 3. The detention order in question does not stand legal scrutiny and is destined to be set aside on the following grounds: 1) The detention order makes mention of material referred such as "Dossier and other connecting documents" relied upon by the Detaining Authority while making order. The detention order also makes reference to a communication of Senior Superintendent of Police Srinagar No. Lgl/Det/10/636-38 dated 19.2.2010. The detention order also makes reference to a communication of Senior Superintendent of Police Srinagar No. Lgl/Det/10/636-38 dated 19.2.2010. The detention record reveals that none of the documents referred to in the detention order were ever supplied to the detenue. The endorsement on reverse of the detention order made by the Executing Officer at the time of execution of detention order does not make reference to the documents in question and does not certify the supply of such documents to the detenue at the time of execution of detention order or immediately thereafter. The grounds of detention make mention of case FIR 16/2010 under section 307, 147, 148,149, 332, 336, 12 I-A, RPC and 13 ULA (P) Act, to have been registered at Police Station Nowhatta against the detenue. The detention order even makes mention of the arrest of the detenue in connection with aforesaid FIR and the fact that the investigation in the matter was in progress. Involvement of the detenue in aforementioned case appears to have weighed with the Detaining Authority while making the detention order. The record does not indicate that copy of the aforementioned FIR or material collected during investigation, was ever supplied to the detenue, to enable him to exercise his Constitutional and Statutory rights guaranteed under Article 22 (5) of the Constitution of India and Section 13 of jammu and Kashmir Public Safety Act, 1978. The Constitutional and Statutory Safeguards are meaningless unless and until the material on which the detention order is based, is supplied to the detenue. It is only after the detenue has all the said material available that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the detention order is edificed, the detenue would not be in a position to make an effective representation against his detention. The failure on the part of Detaining Authority to supply the material relied at the time of making the detention order, renders the detention illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The failure on the part of Detaining Authority to supply the material relied at the time of making the detention order, renders the detention illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression in Dhannajoy Dass v. District Magistrate AIR, 1982 SC 1315; Sofia Ghulam Mohammad Bam v. State of Maharashtta 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.LJ 219; and Tahir Haris v. State and Others AIR 2009 Supreme Court 2184. 2) Article 22(5) of Constitution of India guarantees a precious and valuable right to a person detained under preventive detention law -- J&K Public Safety Act 1978 in the present case, to make a representation against his detention. It needs no emphasis that a detenue on whom preventive detention order is slapped, is held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or to maintenance of the public. Article 22(5) of the Constitution and section 13 of the Act, make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making a representation against his detention. The object is to enable the detenue to convince the Detaining Authority and the Government, as the case may be, that all apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to the detenue meaningful, it is necessary that the detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded the Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. In the present case the detenue is alleged to have developed contacts with anti social elements and to have been working at the behest of some secessionists and indulged in activities aimed at creating anti social activities. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. In the present case the detenue is alleged to have developed contacts with anti social elements and to have been working at the behest of some secessionists and indulged in activities aimed at creating anti social activities. The grounds of detention do not give particulars of anti social elements with whom the detenue got associated or the secessionists at whose behest the detenue is indulging in anti social activities. The detenue in absence of such details would not be in a position to explain and convince the respondents that the detenue as a matter of fact did not associate with the anti social and secessionist elements and that the persons with whom the detenue had to do any thing are neither secessionist nor anti social element and that the petitioner was not indulging in the anti social activities. The detenue is alleged to have been indulging in stone pelting -- the activity allegedly pursued by the associates of the detenue. The grounds of detention do not acquaint the detenue with particulars like names, parentage and place of residence of such associates. The detenue in absence of such details, it needs no emphasis would not be in a position to make effective use of the constitutional and statutory safeguards laid down in article 22(5) Constitution of India section 13 of Jammu & Kashmir Public Safety Act 1978. The detenue is alleged to be one of the main organizers of stone pelting in the down town area. The detenue is not informed of other main organizers of the stone pelting and such other activities. The petitioner in absence of clear, unambiguous, certain and exact grounds of detention has been grossly prejudiced in his right to make a representation against his detention. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue unclear about what really was intended to be conveyed by the Detaining Authority. It is well settled law, that even where one amongst various grounds of detention is vague and ambiguous, the detention order is bound to bet set aside. A reference in this regard may be made to Dr. It is well settled law, that even where one amongst various grounds of detention is vague and ambiguous, the detention order is bound to bet set aside. A reference in this regard may be made to Dr. Ram Krishan v. The State of Delhi and others, AIR, 1953 ; 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 219. 3) The grounds of detention identify "maintenance of public order" as the ground for slapping preventive detention on the detenue. The Respondent No.2, as is evident from the detention order in question was satisfied that the detenue was required to be detained under Jammu & Kashmir Public Safety Act so as to prevent him from acting in any manner prejudicial to the maintenance of public order. The reply filed by the Respondent No.2 however, presents a completely different story. The respondent No.2 in para 2 of the reply, insists that the activities of detenue were considered to be highly prejudicial to the "security of the State". It needs to be pointed out that under section 8(1)(a) the detention order can be passed either to prevent a person placed under preventive detention from acting in a manner prejudicial to the "security of the State" or "maintenance of Public order" or both. In the present case the respondent No.2, author of the detention order in question discloses the maintenance of public order as a ground that persuaded respondents No.2 to slap preventive detention on the detenue. In the objections/reply the respondent No.2 takes a contradictory and opposite stand and insists that "security of the State" was the ground that weighed with him while making the detention order in question. The contradictory stands taken by the Respondent No.2 are indicative of non application of mind on part of the respondent No.2 and the detention order having been made in a mechanical manner. 4) The Detaining Authority -- respondent No. 2, 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 his detention was considered by the Government and approved. 4) The Detaining Authority -- respondent No. 2, 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 his detention was considered by the Government and 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 Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and Others v. Santosh Shankar Acharya, AIR 2000 SC 2504 . 4. Viewed thus the petition is allowed and the detention order No. No.DMS/PSA/79/2009 dated 20.2.2010 passed by the District Magistrate Srinagar-respondent No.2, directing preventive detention of Mohammad Shafi Dar S/o Gh. Mohammad Dar R/o Sheikh-ul-Alam Colony, Kawdara, Srinagar, is quashed. Resultantly, the detenue is directed to be forthwith released from the preventive detention.