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2010 DIGILAW 448 (JK)

Mian Ab. Qayoom v. State Of J&K

2010-08-17

MUZAFFAR HUSSAIN ATTAR

body2010
1. Respondent No. 2 in exercise of powers conferred upon him by Section 8(2) of the J&K Public Safety Act, 1978 (for short "Act of 1978") ordered for the detention of the petitioner (for short "detenu") vide order No. DMS/PSA/29/2010 dated 07.07.2010. Detenu has been ordered to be lodged in sub jail Hiranagar, Jammu and till date he continues to be in the confinement. 2. Detention order has been called in question by filing this petition on 09.07.2010 inter alia on the grounds that the grounds of detention are vague, uncertain, ambiguous, cryptic and indefinite; the material referred to and relied upon by the detaining authority has not been furnished to the detenu thus preventing him from making effective representation against the order of detention; copies of the FIRs referred to and relied upon in the grounds of detention have neither been provided nor served upon the detenu; respondent No. 2 has relied upon stale and outdated material for detaining the detenu. 3. In the rejoinder affidavit, it is pleaded that respondent No. 3 for malafide reasons has prepared the dossier, which is one of those documents which has become basis for issuing the detention order. 4. Respondents have filed counter affidavit and preliminary objection has been raised about the maintainability of the petition by stating that in view of the provisions of the Act of 1978 same is premature and merits dismissal. 5. Mr. G. Mustafa, learned Deputy Advocate General submitted that the petition is premature thus being not maintainable at this stage and prayed for its dismissal. Learned counsel referred to various provisions of Act of 1978 to support his contention. 6. Mr. M. I. Qadiri, learned Advocate General in this behalf referred to Sections 8, 14, 15, 16 and 17 of the Act of 1978. Learned counsel also submitted that in terms of the Act of 1978, Government has constituted an Advisory Board. In terms of Section 15 of the Act of 1978, Government has submitted relevant record on 27th July, 2010 to the State Advisory Board as provided under said provision of the Statute. Learned counsel invited the attention of the Court to Section 16 of the Act of 1978 to indicate that complete procedure has been provided for consideration of the material by the State Advisory Board and even for affording an opportunity of hearing to the concerned. Learned counsel invited the attention of the Court to Section 16 of the Act of 1978 to indicate that complete procedure has been provided for consideration of the material by the State Advisory Board and even for affording an opportunity of hearing to the concerned. Learned counsel also referred to Sub-Section 3 of the Section 16 of the Act of 1978 to indicate that Advisory Board has to specify its opinion as to whether or not there is sufficient cause for the detention of the person concerned. Learned counsel also referred to Sub-Section 2 of the Section 17 of the Act of 1978 to show that in case the Advisory Board in its opinion states that there is no sufficient cause for the detention of the person concerned, the Government is duty bound to revoke the detention order and release the concern person forthwith. Learned counsel submitted that as the matter is pending consideration of the State Advisory Board, which has to make its report within eight weeks from the date of detention, the detenu has to wait for the said period. It is in this backdrop, the learned Advocate General submitted that the petition is premature. Learned Advocate General also referred to and relied upon judgments reported in AIR 1987 SC 725 , AIR 1994 SC 2179 and AIR 1985 SC 330 . 7. Learned Advocate General vehemently argued that in view of the scheme of the Act of 1978, more particularly, the mandate contained in Sections 16 and 17, an efficacious alternative remedy being available to the detenu, petition is not maintainable and merits rejection. Learned Advocate General while placing whole hog reliance on Section 16(3) and Section 17(2) of the Act of 1978 submitted that the conjoint reading of these provisions of law would show that in case the Advisory Board report that there is no sufficient cause for detaining the detenu, Government is duty bound to revoke the detention order and release the detenu forthwith. Learned Advocate General in his wisdom accordingly submitted that the above referred provisions of laws provided an efficacious alternative remedy to the detenu and in these circumstances, this petition is not maintainable and merits rejection. Learned Advocate General in his wisdom accordingly submitted that the above referred provisions of laws provided an efficacious alternative remedy to the detenu and in these circumstances, this petition is not maintainable and merits rejection. Learned counsel also submitted that exercise of jurisdiction by this Court is discretionary and in the submission of learned Advocate General discretion cannot be exercised at this stage in the case for the reasons cited at the bar by him. Learned counsel also submitted that in terms of Section 17 of Act of 1978, Government has yet to take decision as to whether the order of detention is to be confirmed and for which period detenu is to be detained. Learned Advocate General on the basis of these submissions stated that petition being premature is not maintainable and merits dismissal. 8. While responding to the arguments of learned Advocate General, Mr. Z.A. Shah, learned senior Advocate for the detenu submitted that safeguards provided to the detenu under Article 22 of the Constitution of India and provisions of Act of 1978 are procedural safeguards made available to the detenu and on these basis it cannot be said that the petition is premature. Learned counsel vehemently argued the concept of efficacious alternative remedy as propounded by the learned Advocate General is not attracted to the case of a person who is detained under the preventive detention laws. Learned counsel invited the attention of the Court to Article 22 of the Constitution of India and submitted that when a person is detained under preventive detention laws he is not entitled for being brought before Magistrate and is also not entitled to consult legal practitioner. Learned counsel accordingly submitted that denial of these rights to the detenu has obligated upon the State to adopt measures to safeguard the Constitutional and legal rights of the detenu. Learned counsel submitted that right to lead a free life is a basic human right and a person cannot be deprived of his personal liberty except in accordance with the procedure established by law. Learned counsel submitted that the arguments of the learned Advocate General that the petition is not maintainable, being premature on the reasons of safeguards made available to detenu, cannot be countenanced in law. Learned counsel submitted that the arguments of the learned Advocate General that the petition is not maintainable, being premature on the reasons of safeguards made available to detenu, cannot be countenanced in law. Learned counsel also referred to and relied upon the judgments of the Hon’ble Supreme Court reported in 1992 Supp (1) SCC 496, AIR 1987 SC 725 and AIR 2004 SC 2220 . 9. In order to appreciate the issue raised, Section 16 and 17 of the Act of 1978 and Article 21 and 22 of the Constitution of India are reproduced as under: 16. Procedure of Advisory Board (1) The Advisory Board shall, after considering the material placed before it and, after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within eight weeks from the date of detention. (2) Notwithstanding anything contained in sub-section (1), the Board may, if the person detained so demands, at any time before submitting its report, after affording an opportunity to the person detained and the Government or the officer, as the case may be, of being heard, determine whether the disclosure of facts, not disclosed under sub-section (2) of Section 13 to the person detained, is or is not against public interest. Such finding of the Board shall be binding on the Government. (3) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. (4) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. (5) Nothing in this section shall entitle any person against whom a detention order has been made to appeared by any legal practitioner in any matter connected with the reference to the Advisory board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. 17. 17. Action upon report of Advisory Board (1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. 21. Protection of life and personal liberty.- No person shall be deprived of his personal liberty except according to procedure established by law. 22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate (3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is any enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) An advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed any law maybe Parliament under sub-clause (b) of clause (7); or (b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive, detention without obtaining the opinion of any Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory board in any inquiry under Sub- Clause (a) of clause (4). 10. "WE THE PEOPLE" have given to ourselves constitution, which document covers all the fields of life. The said document which is sacred for all, has crystallized basic human rights by christening them as fundamental rights. Ours is a parliamentary democracy and it is the people who are "sovereign" and in whom lies the ultimate authority. It is this sovereign authority viz. the people, who have given to themselves the Constitution. The State on the one hand is duty bound to faithfully and obediently follow the mandate of the Constitution and on the other hand citizens are also duty bound to follow and respect the mandate contained in the Constitution and other laws. The people in terms of Constitution have created state for having orderly society based on principles of fairness, ethics, morality. For preserving and protecting both the state as also individual rights, different institutions have been created. State is duty bound to protect the life, liberty and property of its citizens and citizens in turn are duty bound to lead an orderly life in accordance with the mandate of Constitution and other laws made. An individual can survive only when state survives. State is duty bound to protect the life, liberty and property of its citizens and citizens in turn are duty bound to lead an orderly life in accordance with the mandate of Constitution and other laws made. An individual can survive only when state survives. The existence of a state when threatened will in turn jeopardise the very existence of the individual who constitutes a part of the whole of the State. The duties and responsibilities are thus to the honoured and shared by the State and the individual. For maintaining the security of the State and public order, preventive detention laws are made. The laws though apparently impinge upon the individual liberty guaranteed by the Constitution, have to prevail to protect the society from being endangered by an individual. It is always appropriate to prevent the individual from indulging in such hazardous activities which would threaten the very existence of the State and/or public order, by detaining him under preventive detention law. 11. The individual liberty is most valuable and cherished right and is recognised not only by the Constitution but by the international Covenants as well. The Article 21 of the Constitution of India provides that no person shall be deprived of his personal liberty except according to the procedure established by law. Article 21 thus recognises an important right which inheres in an individual. The right to personal liberty is thus not only to be protected but respected by the State. The right to personal liberty however can be interfered with in accordance with the procedure established by law. For achieving a bigger cause, the preventive detention laws provide a mode of depriving an individual of his personal liberty. 12. Article 22 of the Constitution of India, on which reliance has been placed by Mr. Shah, learned senior Advocate appearing for the detenu, mandates that no law providing preventive detention shall authorize detention of a person for a longer period than three months, unless Advisory Board in its opinion has reported before the period of said three months that there is sufficient cause for such detention. 13. The detenu has been deprived of his personal liberty as guaranteed by Article 21 of the Constitution of India. The State claims to have deprived the detenu of his liberty in accordance with the procedure established by law viz. under the provisions of Act of 1978. 13. The detenu has been deprived of his personal liberty as guaranteed by Article 21 of the Constitution of India. The State claims to have deprived the detenu of his liberty in accordance with the procedure established by law viz. under the provisions of Act of 1978. When a person is detained under the preventive detention law, he is not to be brought before the Magistrate and is not entitled to consult legal practitioner, though a person who is arrested/detained for commission of alleged offences is to be produced before the Magistrate within 24 hours on such arrest and has to be afforded as opportunity for consulting a legal practitioner. When a person is arrested for alleged commission of offence, he can approach the Court of competent jurisdiction for seeking his release on bail or even for his discharge by showing that the material collected during the investigation does not inculpate him. A person who is detained under the preventive detention law has right to challenge the detention but said right is circumscribed by the procedure established by law. The State governed by rule of law, being repository of all basic and constitutional rights of the people, is duty bound to provide machinery and to take steps to find out whether detenu is to be deprived of his personal liberty for a period of time provided by Statute. This is the basic and fundamental duty of the State. In a democratic society, the State has to discharge its obligations and duties. The constitution of the Advisory Board as mandated by the Article 22 of the Constitution of India thus finds a place in the Act of 1978 as well. The purpose of the constitution of the Advisory Board comprising of a Judge of a High Court or a retired judge of the High Court and two other members who have been, or, are qualified to be appointed as judges of the High Court is to find out whether or not there is sufficient cause for the detention of the person concerned. By constituting Advisory board the State has fulfilled its constitutional obligations for providing safeguard to the person who has been deprived of his personal liberty without putting him on trial before the Court of law. The Advisory Board has thus power to find out as to whether there is sufficient cause or not for the detention of the detenu. By constituting Advisory board the State has fulfilled its constitutional obligations for providing safeguard to the person who has been deprived of his personal liberty without putting him on trial before the Court of law. The Advisory Board has thus power to find out as to whether there is sufficient cause or not for the detention of the detenu. The expression "sufficient cause" appearing in Sub-Section 3 of the Section 16 of the Act of 1978 confers power upon the Advisory Board to consider the entire material and take the conscious decision as to whether the material so available does constitute sufficient cause to effect the detention of the person. This is the constitutional safeguard provided to detenu who is detained under the preventive detention law. State by constitution of said Board has fulfilled its constitutional obligations to ensure that no person is detained under preventive detention law without there being any sufficient cause. This in law cannot be said to provide an efficacious alternative remedy to the detenu and on such basis, it cannot be held that unless Advisory Board gives its opinion the petition will be premature and not maintainable. The argument of the learned Advocate General in this behalf falls foul of Constitutional safeguards available to the detenu as it is State’s responsibility to provide such mechanism for safeguarding the rights of an individual. 14. The moment a person is deprived of his personal liberty guaranteed by Article 21 of the Constitution of India, which inheres in him, he gets right to challenge such detention on the grounds available in law. The detenu can challenge his detention calling it to be illegal being violative of Constitutional guarantee as contained in Articles 21 and 22 of the Constitution of India. The person who is detained without being brought before the Magistrate immediately after his arrest, by no stretch of imagination can be said to wait until such time the Advisory. Board furnishes its opinion to the State Government. The duty imposed by the State upon itself to provide procedural safeguard to detenu detained under preventive detention law, cannot take away right of the detenu to challenge his detention before the Constitutional Court. The right to challenge detention order is an independent right which accrues to a detained person and is not circumscribed by any statutory provision providing for a safeguard. The right to challenge detention order is an independent right which accrues to a detained person and is not circumscribed by any statutory provision providing for a safeguard. The moment a person is detained, he gets an independent right, not circumscribed by the provisions by the Act of 1978, more particularly by Section 16 of the said Act to challenge same. The Article 21 of the Constitution of India to which Article 22 is interlinked confers right upon an individual to challenge the detention on the grounds available to him. The moment his personal liberty is taken away by the act of statutory authority, he gets right to challenge same. The right to challenge detention by a person cannot be abridged or curtailed by saying that until such time the Advisory Board gives its opinion, the challenge thereto has to await. As already stated it is the State’s obligation to provide procedural safeguard and it cannot be said to be taking away the right of an individual to challenge his detention. 15. The law cited at the bar by the learned counsel appearing for the respondents in support of their preliminary objections does not support the arguments raised by them. The judgment of the Hon’ble Supreme Court reported in AIR 1985 SC 300 refers to alternative remedy of appeal which in that case was provided by the tax Statute and the case in hand has different and distinct features. In that case provisions of appeal was available. The Judgment referred to by the learned Counsel for respondents reported in AIR 1994 SC 2179 pertains to detention which came into existence during the proclamation of an emergency. The said judgment also does not help the respondents. The judgment reported in 1987 SC 275 has been referred to by the learned counsel for the either side. In that case, the Government did not refer the matter to Advisory Board. On passing second detention order, the question before the Hon’ble Supreme Court was as to whether a law can be made providing for issuing of successive orders of detention in a manner as to render the protection under Article 22(4) a mirage. The said judgment again does not help the respondents. The judgment referred to by the learned counsel for the petitioner reported in 1987 and 2004 pertains to the cases where orders at pre execution stage were challenged. The said judgment again does not help the respondents. The judgment referred to by the learned counsel for the petitioner reported in 1987 and 2004 pertains to the cases where orders at pre execution stage were challenged. The Hon’ble Supreme Court has summarized the circumstances in which even detention order can be challenged at pre-execution stage. These judgments have been cited to show that when detention order can be challenged at pre-execution stage, then a person detained in pursuance of detention order gets right to challenge it at any time. The moment, detention order is executed against him the detenu gets right to challenge the same. The Hon’ble Supreme Court in case titled Additional Secretary to Government of India and ors. (Appellant) v. Smt Alka Subash Gadia and anr. (respondents) has ruled at paragraph 28 of the said judgment as under: 28. "It is to prevent the possible abuse of this draconian measure that the legislature has taken care to provide certain salutary safeguards such as (i) the obligation to furnish to the detenu the grounds of detention ordinarily within five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention, (ii) the right to make representation against the order of detention, (iii) the constitution of Advisory Board consisting of persons who are or have been qualified to be appointed as Judges of the High Court, (iv) the reference of the case of the detenu to the Advisory Board within five weeks of the date of the detention, (v) the hearing of the detenu by the Advisory Board in person and the submission by the board of its report to the Government within 11 weeks from the date of detention, (vi) the obligation of the government to revoke the detention order if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the person concerned, (vii) the provision of the maximum period for which a person can be detained and (viii) revocation of the detention order by the government on the representation of the detenu independently of the recommendation of the Advisory Board etc. In addition, the detenu or anyone on his behalf has a right to move the High Court and the Supreme Court by way of a habeas corpus petition challenging the detention on various grounds which are already pointed out above while discussing the various authorities........." (Emphasis supplied) 16. For the above stated reasons, it is held that this petition is not premature and is maintainable. Registry to list the case in the next week before any available Bench.