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2010 DIGILAW 37 (JK)

Gh. Nabi Sumji v. State

2010-02-03

MOHAMMAD YAQOOB MIR

body2010
1. Impugned is the third detention order bearing No.DMS/PSA/52/2009 dated 14.11.2009 passed under the provisions of the Jammu and Kashmir Public Safety Act. 2. The first detention order dated 30.10.2008 has been revoked by the Detaining Authority itself. Thereafter vide detention order dated 11.6.2009, the detenue was detained. Said detention order became the subject matter of the petition bearing HCP No. 117/2009. Same has been quashed vide judgment dated 14.9.2009 but again detenue has been detained pursuant to the detention order under challenge. 3. Learned counsel for the petitioner would contend that without any material different to that of the material based on which detention order dated 11.6.2009 was passed, the impugned detention order has been passed when the earlier detention order passed on the same material was quashed. 4. In opposition to the said contention learned counsel for the respondents would contend that the detention order is based on a different material as the respondents have been receiving information to the effect that after release detenue has been indulging in anti-national activities. The modus operandi of said activities is so subtle and well crafted that things will go wrong if not checked well in time. 5. On perusal of the grounds of detention, it is quite explicit that all the earlier actions taken against the detenue have been narrated. It has also been narrated that the detenue was earlier detained vide detention order dated 8.6.2009 which detention order was quashed and the detenue was released but subsequent to the release, there have been the reports about the activities of the detenue. It shall be quite appropriate to quote relevant portion of the grounds of detention: "However, the report coming after your release indicates that you continue indulging in anti-national activities which are prejudicial to the maintenance of security of state. The modus operandi of such activities is so subtle and well Grafted that things will go wrong if not checked well in time. Your programme of creating trouble includes instigating the general public to resort to violent protests a programme which you have already initiated and is being implemented in phased manner." 6. The modus operandi of such activities is so subtle and well Grafted that things will go wrong if not checked well in time. Your programme of creating trouble includes instigating the general public to resort to violent protests a programme which you have already initiated and is being implemented in phased manner." 6. The allegation as recorded in the grounds of detention would indicate that the detention order under challenge is not based on the material which had formed based for the detention order dated 8.6.2009 but the important question which emerge for consideration is as to whether the allegation as quoted above shall be sufficient to form base for passing the order of detention impugned. The reply has to be in negative. The allegation as quoted above from the grounds of detention is totally vague. In an arbitrary and ambiguous manner without any basis allegation has been recorded. There is no record which would substantiate such allegation. What were the reports received after the release are not borne out by the records. That apart, whatever be the material forming base for receipt of such reports or details, the reports itself should have been furnished to the detenue in order to enable him to represent against such allegations/reports. From the records it is no where shown that any such report or material has been furnished to the detenue when furnishing of the same was imperative so as to safeguard rights as guaranteed to the detenue under Article 22(5) of the Constitution of India. 7. The detention record as has been produced does not contain any such report or material except the dossier prepared by the SSP. Whatever details are given in the dossier, same are reproduced in the grounds of detention. The allegation as quoted hereinabove is also recorded in the dossier but no other material in the form of report or any other document supporting the said position is available on the detention record. The question of furnishing said material on such premise does not arise at all. 8. If the detenue would have been involved in any such activity after his release pursuant to quashment of the detention order dated 8.6.2009, then at least a case would have been registered in any police station against him. Nothing in thing direction has been placed on record. 9. 8. If the detenue would have been involved in any such activity after his release pursuant to quashment of the detention order dated 8.6.2009, then at least a case would have been registered in any police station against him. Nothing in thing direction has been placed on record. 9. In case there would have been any such material, then same was required to be supplied to the detenue. Firstly there is no such material which could be supplied to the detenue. Even otherwise non-supply of the material forming base for the detention would deprive the detenue from making a representation so as to show his innocence. The infringement of such valuable right renders the order of detention as invalid. In this connection it shall be quite useful to quote the following para from the judgment reported in AIR 1999 SC 3051 (Sophia Gulam Mohammad v. State of Maharashtra): "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 detenue to make a representation against the order of detention. 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 copies thereof are supplied to the person detained, in his own language." 10. Analyzing the facts and features of the present case, it would surface that neither there has been any material to support the allegation as quoted above so as to pave way for passing the preventive orders nor there is any such material where-from it could be gathered that the detenue has been indulging in any such activity. 11. The security of the State definitely is a prime concern. A person who affords to cause any type of insecurity has to be deterred by having resort to preventive laws but before having resort to preventive laws, it has to be born in mind that as a necessary corollary while passing preventive orders, a cherished right to liberty gets curtailed. The curtailment of liberty can be imperative but only when it shall be reasonable and shall be warranted on the basis of a cogent material. Human right has to be respected. The curtailment of liberty can be imperative but only when it shall be reasonable and shall be warranted on the basis of a cogent material. Human right has to be respected. Respect for such right can be ensured only when safeguards provided for respecting such right as envisaged by the preventive laws itself in tune with the constitutional mandate are strictly complied with by the concerned authorities. The duty is cast on the Detaining Authority both to issue preventive orders and also to safeguard the human rights. The authority has to balance the two. The authority has to shun the path of casualness and arbitrariness. The jugglery of words used in the grounds of detention or the order of detention shall not be a substitute for exercise of valuable powers vested in the authority. Impugned preventive detention order is found to be bereft of any legal sanctity. Only option available is to quash the same and order release of the detenue. 12. Petition, as such, is allowed. Detention order impugned bearing No.DMS/PSA/52/2009 dated 14.11.2009 is quashed and the detenue, namely, Ghulam Nabi Sumji ordered to be released forthwith provided he is not required in connection with any other case. 13. Detention record as produced shall be returned back to the counsel for the respondents. Disposed of as above.