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2010 DIGILAW 569 (JK)

Roshan Din v. State Of J&K

2010-11-15

Hasnain Massodi

body2010
1. Challenge in this petition is to order No.DMR/PSA/OF 2009/22 dated 14th September 2009, of District Magistrate, Ramban - respondent No.2 herein, whereby one Shri Roshan Din son of Mohd Yousaf resident of Chirwani Trigam Banihal Tehsil Banihal District Ramban (herein after referred to as "detenue") has been placed under preventive detention and his lodgment directed in Central Jail, Kot Bhalwal Jammu. The petitioner is wife of detenue and thus interested in his life and liberty and competent to maintain the petition. 2. The brief history of the case, as set out in the petition, is that the detenue, a father of six children - all minor, was without any cause or justification, apprehended on 8th July 2009 and subsequently detention order No. DMR/PSA/OF 2009/22 dated 14th September 2009, was slapped upon the detenue. It is pleaded that a letter No.554-55/DMR dated 14.09.2009 was addressed to petitioner with grounds of detention. The respondents, it is insisted, have ignored to provide detention order and material, relied upon by Detaining Authority to order detention and thus deprived detenue of his Constitutional and Statutory rights. Grounds of Detention are stated to be vague, non-existent and unfounded. 3. The respondents have, in their Counter Affidavit, disputed the averments made in the petition and insisted that the activities of detenue were highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue at the time of execution of detention warrant after same were read over and explained to the detenue. The detention order is said to have been approved by the State Advisory Board and subsequently by Government as well in terms of order No. Home/PB-V/906/2009 dated 15.10.2009. The Learned Government Advocate has made available detention record to lend support to the case set up in counter affidavit. 4. I have gone through the petition and counter affidavit as also detention record. I have heard learned counsel for the petitioner as also learned Government Advocate, appearing for respondents. 5. The Detention Order is liable to be quashed for the following reasons: - (I) The Detention order makes mention of material record such as "dossier and other connecting documents" relied upon by the Detaining Authority while making the detention order. The detention order also makes reference to a communication received from Superintendent of Police, Ramban. 5. The Detention Order is liable to be quashed for the following reasons: - (I) The Detention order makes mention of material record such as "dossier and other connecting documents" relied upon by the Detaining Authority while making the detention order. The detention order also makes reference to a communication received from Superintendent of Police, Ramban. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The endorsement on the reverse of the detention order made by the Executing Officer - Sub Inspector, Gh. Qadir, No.7952/NGO, DPL Ramban, at the time of execution of Detention Order does not make a reference to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter. The grounds of detention make reference to case - FIR No.131/2009 under section 7/20/21/40 Unlawful Activities (P) Act (RW) 120-B RPC, Police Station Banihal to have been registered against the detenue. The involvement of the detenue in aforementioned case appears to have heavily weighed with Detaining Authority while making Detention Order. The record does not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case, were ever supplied to detenue. It is pertinent to point out that Grounds of Detention, after detailing background, in which aforesaid case was registered against detenue, proceed to opine "...it is imperative to continue to detain him to prevent him from indulging in the same in the best interests of security of the State in present scenario." The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents in their counter affidavit have not controverted the plea that the said material was not furnished to detenue. The detention record made available by Learned Government Advocate reveals that none of the documents referred to in the detention order was ever supplied to the detenue. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of 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, unless and until the material on which the detention order is based, is supplied to the detenue. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of 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, 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 said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which 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 material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass v. District Magistrate ( AIR 1982 SC 1315 ); Sofia Ghulam Mohammad Bam v. Slate 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 (S.L.J. 2009 (I) 219); and Tahir Haris v. State and Others (AIR 2009 Supreme Court 2184). (II) Article 22(5) Constitution provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, 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 maintenance of the public order. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenue an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. The object is to enable detenue to convince Detaining Authority and 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 detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded 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 instant case the detenue is alleged to be "OGW" of LeT Organization and providing food and shelter to LeT and "HM". The detenue is not informed with sufficient clarity of the militants to whom the detenue is allegedly providing food and shelter. The words/expressions like "HM", "OGW", "LeT" 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 "LeT and HM outfit" is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be associated. The detenue is alleged to be associate/sympathizer of "Ayaz Ahmed Malik Code Musa" and "Mohd Zabair code Kari". The detenue is not provided particulars of "Ayaz Ahmed Malik Code Musa" and "Mohd Zabair code Kari", and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Ayaz Ahmed Malik Code Musa" and "Mohd Zabair code Kari". The particulars of the "cadres" or the "members of the outfit", to whom the detenue is alleged to have rendered help, are not given. It was incumbent upon the Detaining Authority to give adequate information regarding identity of cadres, militants and associates, with whom the detenue was alleged to have associated to indulge ill 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. 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 of the grounds relied upon by the Detaining Authority to order detention is vague and ambiguous, Constitutional and Statutory right of the detenue to make a representation against his detention are taken to have been violated. 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 (III) 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 the detention was considered by the Government and accorded approval. 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 J&K Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and others v. Santosh Shanker Acharya ( AIR 2000 SC 2504 ) 6. Viewed thus, the petition is allowed and detention order No. DMR/PSA/OF 2009/22 dated 14th September 2009, passed by the District Magistrate, Ramban - respondent No. 2, directing detention of Shri Roshan Din son of Mohd Yousaf resident of Chirwani Trigam Banihal Tehsil Banihal District Ramban, is quashed. 7. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. DMR/PSA/OF 2009/22 dated 14th September 2009. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMR/PSA/OF 2009/22 dated 14th September 2009. 8. Detention record be returned to the counsel for respondents. Disposed of.