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2010 DIGILAW 575 (JK)

Gh. Jeelani Najar v. State Of J&K

2010-11-15

Hasnain Massodi

body2010
1. Challenge in this petition is to order No. Det/PSA/DMA/10/08 dated 15th July 2010, of District Magistrate, Anantnag - respondent No. 2 herein, whereby one Shri Gh Jeelani Najar son of Gh Qadir Najar resident of Mohalla Shirpora Anantnag Tehsil and District Anantnag (herein after referred to as "detenue") has been placed under preventive detention and his lodgment directed in Central Jail, Kathua. The petitioner is father of detenue and thus interested in his life and liberty and competent to maintain the petition. 2. The petitioner's case, as set out in the petition, is that the detenue was, without any cause or justification, apprehended, whereafter detention order No. Det/PSA/ DMA/10/08 dated 15th July 2010, was slapped upon the detenue. The respondents are stated to have ignored to provide 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 seriously 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 Government after it found approval of the State Advisory Board. 4. I have gone through the petition and counter affidavit filed by the respondents. I have heard learned counsel for the petitioner as also learned Additional Advocate General, appearing for respondents. 5. The petition is destined to succeed for the following reasons:- (I) The grounds of detention make reference to case - FIR No. 303/2008 under section 147,148, 307, 188 RPC; FIR No. 176/2009 under section 147, 336, 332, 427, 353 RPC; FIR No. 272/2009 under section 147, 148, 149, 336, 332, 427, 353 RPC; and FIR No. 262/2010 under section 148, 149, 336, 307, 427, 435 RPC, having been registered against detenue at Police Station Anantnag. It appears that the said cases have weighed with respondent No. 2 at the time detention order in question was made. It appears that the said cases have weighed with respondent No. 2 at the time detention order in question was made. Copies of First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s), have not been furnished to detenue. It is pertinent to point out that the respondent No. 2 in Grounds of Detention, after detailing the background, in which aforesaid case(s) were registered against detenue, proceeds to opine "......it is manifest from the above that your activities are highly prejudicial to the security of the State and maintenance of public order". 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 counter affidavit does not reveal that copies of FIRs or material collected during investigation of the aforementioned case(s), was at the time of execution of detention warrant or immediately thereafter made available to the detenue to enable him to exercise his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J & K Public Safety Act, 1978. The Constitutional and Statutory 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 said material available that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that their apprehensions as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the detention order is based, the detenue would not be in a position to make an effective representation against his detention. The failure on the part of Detaining Authority to supply the material relied at the time of making detention order renders detention illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression 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. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression 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 : 2009 (3) JKJ 707 [SC]; 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. 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 an effective representation against his detention. In the present case, the reasons spelt out in the grounds of detention include an apprehension that the detenue is creating confusion and law and order situation in Town Anantnag for which he is using some Gundas. The other ground that is claimed to have weighed with the Detaining Authority, is that the detenue carried disruptive activates and encouraged goondism. The words/ expressions like "Gundas", "goondism", are too vague to make the detenue aware of the exact accusation leveled against him. The other ground that is claimed to have weighed with the Detaining Authority, is that the detenue carried disruptive activates and encouraged goondism. The words/ expressions like "Gundas", "goondism", 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 meaning of expression "Gundas" and "Gundaism" or identity of such elements, it is aware of, must be necessarily known to the detenue. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear to enable a man of common prudence to explain his stand muchless make an effective and meaningful representation. The detenue is not informed with clarity about his alleged activities that may prejudice security of State. It was incumbent upon the Detaining Authority to give adequate information regarding people, with whom the detenue was alleged to have associated to indulge in activities which are detrimental to the security of the State and public order. The detenue is not furnished particulars of people, who are stated to be instigated/provoked by the detenue, to hold demonstrations. The grounds of detention thus as hazy and lacking in important details. The respondents, by their conduct, have deprived detenue of his Constitutional and Statutory rights, guaranteed under Article 22(5) and section 13 of the J & K Public Safety Act. It is well settled law that even if one, amongst various grounds of detention, is found to be vague, the Constitutional and Statutory safeguards available to detenue, are to be held to have been violated. View taken finds support from the law laid down in 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 ) : 2010 (6) JKJ 840 [SC]; and Syed Aasiya Indrabi v. State of J & K and others (2009 (I) SLJ 2009 219) : 2009 (3) JKJ 707 [SC]. (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. (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. Det/PSA/DMA/10/08 dated 15th July 2010, passed by the District Magistrate Anantnag - respondent No. 2, directing detention of Shri Gh Jeelani Najar son of Gh Qadir Najar resident of Mohalla Shirpora Anantnag Tehsil and District Anantnag, is quashed. 7. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. Det/PSA/DMA/10/08 dated 15th July 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. Det/PSA/DMA/10/08 dated 15th July 2010. Disposed of.