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2010 DIGILAW 392 (JK)

Jehangir Ahmad Malik v. State Of J&K

2010-07-12

Hakim Imtiyaz Hussain, Hasnain Massodi

body2010
1. Shri Ghulam Qadir Malik - appellant herein, questioned detention of his son - Shri Jehangir Ahmad Malik (hereinafter referred to as "detenue") ordered by District Magistrate Shopian -- respondent No.2 herein vide Order No.84/DMS/ PSA/09 dated 29.12.2009, through medium of Habeas Corpus Petition before the Writ Court. The grounds pleaded were that there were no compelling reasons to slap preventive detention on the detenue inasmuch as the allegations against the detenue could be dealt with under ordinary criminal law. The appellant insisted that the grounds of detention were vague, indefinite, imaginary and baseless; that the grounds of detention and the material relied upon were not furnished to the detenue so as to enable the detenue to make a representation against his detention. The respondents were alleged to have violated Constitutional and Statutory rights of the detenue guaranteed under Article 22 (5) of Constitution and Section 13 of J&K Public Safety Act. 2. The detention order was said to have been executed after long and inordinate delay and no explanation given, justifying belated execution of the detention order. The appellant complained that the detention order was made in a mechanical manner and the detenue, at the time the detention order was made, was in custody and no compelling circumstances were spelt out by the respondent No.2 for preventive detention of the detenue. 3. The respondents in their counter affidavit reproduced verbatim the facts and events detailed in the grounds of detention. The detenue was alleged to have been pushed to militancy by one Mohammad Issaq Parray and to have indulged in subversive activities. The respondents pleaded that a number of criminal cases were registered against detenue and that some recovery of arms and ammunition also was made from the detenue. 4. Learned Writ Court vide judgment and order dated 03.04.2010 dismissed the petition. The Writ court was of the opinion that copy of detention order and grounds of detention having been furnished to the detenue, there was sufficient compliance of mandate of law; that the rights of the society at large cannot be sacrificed at the altar of individual rights and that In view of averments made, the statutory authority was duty bound to proceed under the provisions of J&K Public Safety Act of 1978. The Writ Court spelt out the reasons for dismissal of the Petition in the following words:- "......society at large cannot be sacrificed at the altar of individual right. The competent statutory authority in exercise of the statutory powers is duty bound to proceed in accordance with the provisions of the Act of 1978 in the circumstances enumerated in this case". 5. The judgment and order dated 03.04.2010 is assailed in the present Letters Patent Appeal on the grounds the Writ Court has not appreciated fallout of non-supply of material, relied upon by the respondent No.2 while making detention order, on the detenue’s right to file representation against detention order. The Writ Court is also said to have not dealt with failure of the detaining authority - respondent No.2 to give compelling reasons in support of the plea that the ordinary law was not sufficient to deter activities of detenue. It is insisted that having regard to the fact that the detenue was in custody at the time of detention order, the detaining authority was duty bound to detail the reasons that supported such an opinion. The detenue is said to have not been informed at the time of execution of detention order that he had right to make a representation against the detention. The Writ court, according to the appellant, rendered the judgment and order, oblivious to the settled legal position as regards the safeguards available to a person detained under preventive detention law. 6. We have gone through the memorandum of appeal as also the writ record and have heard learned counsel for the parties. 7. The preventive detention and well cherished ideals of personal liberty and rule of law, on which democratic polity like ours has its foundation, do not go hand in hand. The Constitution of India nonetheless makes room for prevention detention laws and prevention detention as laid down by the Supreme Court in Union of India v. Chaya Ghoshal, (2005) 10 SCC 97 , wherein it is observed :- "The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsion to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty" 8. However, Article 22(5) of Constitution of India guarantees some safeguards to a person, held under preventive detention, so that there is no scope for misuse of the power, with which the Government or its officers are clothed under the preventive detention law. 9. The Supreme Court in Dhananjoy Das v. District Magistrate, AIR 1982 SC 1315 , has spelt out the guarantees under Constitution and Statutory safeguards provided to the detenue in the following words:- "The law is by now well settled that the detenue has two rights under Article 22(5) of the Constitution : (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." 10. It has been emphasized times without number that the Constitutional safeguards are to be respected without failure. Any lapse by the Detaining Authority as regards observance of constitutional safeguards available to the detenue, is bound to have fatal consequence for the detention order and persuade the court to quash the order under challenge. 11. In the present case the appellant assailed the detention order on the grounds that the material relied upon by the detaining authority was not furnished to the detenue so as to enable the detenue to make an effective and meaningful representation against his detention; that the grounds of detention were too vague and plagued with ambiguity, again disenabling the detenue from making representation against detention and that the detaining authority had failed to detail the compelling reasons that lead the Detaining Authority to slap preventive detention on the detenue despite the detenue having been in custody in connection with a case registered against him. Learned Writ Court appears to have neither taken notice of the averments made in the petition nor dealt with the grounds of attack detailed in the Habeas Corpus Petition. Learned Writ Court appears to have neither taken notice of the averments made in the petition nor dealt with the grounds of attack detailed in the Habeas Corpus Petition. The Writ Court has thrown out the petition only on the ground that rights of the society cannot be sacrificed for individual rights and as criminal cases registered against the detenue had not dissuaded the detenue from going ahead with the alleged activities, the detaining authority was under statutory duty to order preventive detention of the detenue. 12. There can be no disagreement that societal concerns cannot be disregarded and given a complete go by when individual rights are sought to be secured. The individual cannot be allowed to exercise his fundamental rights in a manner that endanger the rights of the people at large and destabilize very edifice of civil society. This, however, does not mean that whenever a person is held without trial or formal charge under preventive detention law, the Court must abdicate its constitutional obligation to see whether the constitutional and statutory safeguards guaranteed to a detenue, have been respected and satisfied. It is only after the court approached by a detenue alleging violation of constitutional and statutory rights, satisfies itself that such rights and safeguards have been adhered to and followed that the court may go to the question of individual rights being pitted against the rights of society. The court cannot work on assumptions and presumption and uphold preventive detention only on the ground that the individual rights are to surrender to the rights of the society. In the present case as is evident from the judgment and order impugned in the appeal, the Writ Court did not deal with the grounds urged in the petition and did not opine whether the material relied upon by the detaining authority was supplied to the detenue or whether the grounds of detention were free from any ambiguity or were too vague, as contended by the appellant to prevent the detenue from making meaningful use of Constitutional and Statutory guarantees and whether any compelling reasons were given by the respondent No.2 while making the detention order. 13. 13. The constitutional and statutory safeguards under Article 22(5) of Constitution of India and Section 13 of Public Safety Act can be effective only if the detenue is informed that the detenue has a right to make representation and further the detenue is provided all material, that is gone through and relied upon by the detaining authority, while making the detention order. If the material that is relied upon by the detaining authority, is not made available to the detenue and the detenue not made aware of the information that weighed with the detaining authority, the detenue cannot make an effective and meaningful representation against his detention. 14. In the present case the detention order makes mention of material 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 Superintendent of Police Shopian bearing No. DCS/Dossier/09/1566 dated 22.12.2009. The detention record reveals that none of the documents referred to in the detention order was 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 following cases - FIRs, registered in Police Station Shopian against the detenue: 1. FIR No.267/2004 U/S 7/25 A. Act 2. FIR No.211/2009 U/S 307 RPC, 7/27 A. Act 3. FIR No.4 76/2009 U/S 7/25 A. Act 4. FIR No.113/2009 U/S 147, 148, 336, 427, 332 RPC 5. FIR No.130/2009 U/S 148, 149, 188, 332, 336 RPC 6. FIR No. 122/2009 U/S 148, 336, 42 7 RPC 7. FIR No.134/2009 U/S 147, 148, 336, 427 RPC. 15. The detention order even makes mention of the arrest of the detenue in connection with aforesaid FIRs. Involvement of the detenue in aforementioned cases appears to have weighed with the Detaining Authority, while making the detention order. FIR No. 122/2009 U/S 148, 336, 42 7 RPC 7. FIR No.134/2009 U/S 147, 148, 336, 427 RPC. 15. The detention order even makes mention of the arrest of the detenue in connection with aforesaid FIRs. Involvement of the detenue in aforementioned cases appears to have weighed with the Detaining Authority, while making the detention order. The record does not indicate that copies of the aforementioned FIRs or material collected during investigation of the said cases was 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 Statutorily 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 such 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 detenue is baseless and misplaced. If the detenue is not supplied the material on which the detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of Detaining Authority to supply the material relied upon at the time of making the detention order, renders the detention order illegal and unsustainable. The view is in tune with 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. Slate and Others AIR 2009 SC 2184 . 16. In order to make Constitutional and Statutory safeguards available to a person detained under preventive detention law meaningful, it is equally necessary that the grounds of detention are free from any ambiguity. In case the grounds of detention are vague and ambiguous, the detenue would not be in a position to explain his stand. 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. In case the grounds of detention are vague and ambiguous, the detenue would not be in a position to explain his stand. 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 order. Article 22(5) of the Constitution and Section 13 of the Public Safety Act, thus 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 apprehensions, 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 or activities that persuade 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. 17. In the instant case the detenue is alleged to have "joined HM militant outfit" `whose’ camp is headquartered at PAK/POK. The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly associated. The words/expressions like "PAK", "HM", "POK" are too vague to make the detenue aware of the exact accusation leveled against him. The detaining authority has not to work on assumptions and presumptions that whatever acronyms it is aware of, must be necessarily known to the detenue. The reference to the activities of "HM outfit" is rendered meaningless in view of non description of the organization with which the detenue is alleged to be associated. 18. The detenue is alleged to have motivated "Rafiq Ahmad Sheikh", "Shahid Amin Turray" and "Mukhtar Ahmad Tantary" for joining the militant ranks. The detenue was not provided particulars of "Rafiq Ahmad Sheikh", "Shahid Amin Turray" and "Mukhtar Ahmad Tantary" and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Rafiq Ahmad Sheikh", "Shahid Amin Turray" and "Mukhtar Ahmad Tantary". The detenue was not provided particulars of "Rafiq Ahmad Sheikh", "Shahid Amin Turray" and "Mukhtar Ahmad Tantary" and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Rafiq Ahmad Sheikh", "Shahid Amin Turray" and "Mukhtar Ahmad Tantary". Again the detenue is alleged to have with his "associates provoked the general public against the Govt. machinery" and provoked "anti national protests". The particulars of the "associates" or the "persons" with whom the detenue provoked the general public against the Government machinery are not given. The grounds of detention do not depict sufficient particulars of events/ dates, on which alleged protests were held making it impossible for the detenue to make an effective representation against his detention. It was incumbent upon the Detaining Authority to give adequate information regarding identity of militants, youths and associates, with whom the detenue was alleged to have associated to indulge in subversive activities. The detenue only after getting the said information would have been in a position to explain his stand and make an effort to convince the competent authority that his preventive detention was unwarranted. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue guessing 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 be 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 2009 219. 19. The Detaining Authority 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 detaining authority, 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. The detaining authority, 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 . 20. We for the reasons discussed allow the appeal and set aside judgment and order dated 03.04.2010. Resultantly the Habeas Corpus Petition No. 01/2010 is allowed and the detention order No.84/DMS/ PSA/09 dated 29.12.2009, quashed. The detenue be released from preventive detention ordered vide No.84/DMS/PSA/09 dated 29.12.2009.