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2010 DIGILAW 408 (JK)

Gh. Ahmed Mir v. State

2010-07-23

Hasnain Massodi

body2010
1. Challenge in this petition is to the order No. 13 of 2008 dated 16th of September 2008 whereby District Magistrate, Rajouri -- Respondent No. 2 herein has ordered preventive detention of Ghulam Ahmed Mir alias Zia Mir S/o Ab, Aziz Mir, R/o Thanamandi, Tehsil Thanamandi, District Rajouri (hereinafter referred as detenue) under Jammu and Kashmir Public Safety Act, 1978. The preventive detention in question is assailed on the ground that the detention order has been made in violation of Article 21 and 22 of the Constitution of India as also provisions of Jammu and Kashmir Public Safety Act, 1978; that the respondents failed to provide to the detenue the grounds of detention and the material relied upon, by the detaining authority and thus have dis-enabled the detenue from making a representation against the preventive detention; that earlier orders of detention slapped on the detenue were either quashed by the High Court or revoked by the Government rendering the fresh detention order un-warranted and against the law; that the order is based on the incident alleged to have taken place way back in years 1999, 2000, 2001 and 2004 and thus there were no compelling reason for the detaining authority to pass detention order; that in some of the cases registered against the petitioner and referred to in the grounds of detention, prosecution has failed to prove its case and the detenue has been acquitted. 2. The grounds of detention, it is urged are vague and lacking in specific details making it impossible for the petitioner to make use of constitutional and statutory safeguard; petition is opposed on the ground that grounds of detention were handed over to the detenue along with detention order and also read over and explained to the detenue; that the detenue was also informed that detenue had a right to file representation against his detention. The respondents insisted that detneue is a hard core separatist and the detention order is in accordance with law. 3. Heard and considered. 4. The petition is destined to succeed on the following grounds:- 1. The grounds of detention make mention of case FIR No. 129/2004 under Section 3 of Enemy Agent Ordinance, registered against the petitioner at Police Station not disclosed in the grounds of detention. The detention record does not indicate that copy of the FIR or the material collected during investigation was ever supplied to the detenue. The grounds of detention make mention of case FIR No. 129/2004 under Section 3 of Enemy Agent Ordinance, registered against the petitioner at Police Station not disclosed in the grounds of detention. The detention record does not indicate that copy of the FIR or the material collected during investigation was ever supplied to the detenue. It appears that case FIR No. 129/2004 weighed with detaining authority while making detention order in question. The detenue, in the circumstances, had a right to have a copy of FIR and other material including the investigation report, so as to make effective and meaningful use of the right guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978. It needs no emphasis that a person on whom preventive detention order is slapped is held in custody/detained on a mere suspicion that such person may indulge in activities prejudicial to the security of the State and/or public order. The detenue is detained in absence of a formal charge and without any trial. The detenue, in the circumstances, as mandated by Article 22 (5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978 has a right to approach the detaining authority to insist that apprehension nursed by the detaining authority as regards the activities of the detenue is misplaced and that detention order is unwarranted. In the event, the material relied upon by the detaining authority is not provided to the detenue, the detenue shall not be in a position to make an effective representation against his detention. The respondents, thus, by withholding the material that was gone through and relied upon by the detaining authority have in effect violated the 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, 1978. 2. The grounds of detention are vague as well as stale in point of time. The detenue is detained on account of the activities attributed to the detenue in years 1999, 2000, 2001 and 2004 that too after more than four years. This apart, a reference is made in the detention to the public utterances of detenue not reproduced in the grounds of detention. The detenue is detained on account of the activities attributed to the detenue in years 1999, 2000, 2001 and 2004 that too after more than four years. This apart, a reference is made in the detention to the public utterances of detenue not reproduced in the grounds of detention. On the top of it, the public utterances are claimed to have been made 7 to 9 years prior to the detention order. Least that was expected of the detenue authority was to detail the public utterances attributed to the detenue so that the detenue would have been in a position to convince the respondents that the detneue had not made utterances or that the detenue was not present at the place where he was alleged to have indulged in alleged activities. The detenue is alleged to be an O.G.W and to have been working for HM. The expression for which the acronym, OGW and HM stand may be known to the respondents, but this by itself does not imply that the detenue was also aware of the expression the acronym stood for. The detenue thus was kept guessing about the exact activities is apprehended and his past conduct. 3. The detenue was not informed by the detaining authority that the detenue had a right to make representation to the detaining authority. It needs to be emphasized that the detaining authority apart from informing the detenue that the detenue may file a representation against the detention to the Government, is also required to inform the detenue that before such representation was made to the Government, the detenue may very well make a representation to the detaining authority. Needless to mention that detenue after the detention order has constitutional and statutory right to convince the detaining authority during the period the detent on order is to survive in terms of Section 8 (4) Public Safety Act, 1978 i.e., 12 days, that the detention order is un-warranted and his personal liberty has been wrongly and illegally curtailed. The detaining authority by omitting to inform the detenue that he had a right to make a representation against his detention to the detaining authority as well, has violated the constitutional and statutory rights of the petitioner. 5. For the reasons discussed above, the petition is allowed and the detention order NO. 13 of 2008 dated 16.09.2008 is quashed. The detaining authority by omitting to inform the detenue that he had a right to make a representation against his detention to the detaining authority as well, has violated the constitutional and statutory rights of the petitioner. 5. For the reasons discussed above, the petition is allowed and the detention order NO. 13 of 2008 dated 16.09.2008 is quashed. Resultantly, the detenue is directed to be released from the preventive detention.