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2010 DIGILAW 80 (JK)

Firdous Ahmed Malik v. State Of J. &K.

2010-02-22

MOHAMMAD YAQOOB MIR

body2010
1. Noticing the activities of the detenue prejudicial to the security of the State, the detaining authority has passed the order of detention bearing No.35/DMB/PSA/09 dated 08.09.2009, so as to deter the detenue from continuing with such activities. Aggrieved thereof instant petition has been filed on behalf of the detenue by his Cousin. 2. The grounds of detention as formulated would reveal that the detenue is an anti-social element, instigates the youth of Baramulla to indulge in stone pelting. On 28.06.2009, detenue alongwith an anti-social element Aijaz Ahmed peer of Langate Handwara while pelting stones on the pretext of alleged molestation of a woman at Police Station, Baramulla, without verifying the actual facts, in this regard case registered as FIR No. 140/09 in Police Station, Baramulla for commission of offence punishable under section 147, 336, 353 RPC. 3. Again on 29.06.2009, the detenue alongwith other associates while pelting stones on Police/Security personnel made announcement on the loud speakers at old town Baramulla to observe complete strike, in the process one Motor Cycle (Pulsar) was set ablaze. On 12.08.2009, same activities were repeated, so again a case was registered as FIR Nos. 183/2009 & 184/2009 in Police Station, Baramulla. In the process of stone pelting number of CRPF and Police personnel including SHO got injured and case was registered under FIR No.141/2009for commission of offence under sections 435, 307, 147, 148, 353, 336, 332, 427 RPC, so was arrested. While in custody detention of the detenu under the sprovisions of Public Safety Act was found imperative, therefore, order of detention impugned dated 08.09.2009 approved by the Government on 15.09.2009 has been executed on 16.09.2009. 4. The first contention, that the detaining authority has not applied its mind, is substantiated by the record itself. In the order of detention dated 08.09.2009, it is mentioned by the detaining authority that on the basis of grounds of detention placed before the detenue by the SSP Baramulla, satisfaction is derived to the effect that the detention is necessary so as to prevent the detenue from acting in any manner prejudicial to the security of the State. Further more has also mentioned that the detenu shall remain detained for twelve (12) months. 5. Further more has also mentioned that the detenu shall remain detained for twelve (12) months. 5. The three circumstances to be mentioned below as appear from the order impugned, indicate lack of non application of mind : (i) Grounds of detention are shown to have been placed before the detaining authority by the SSP, when the SSP is only required to collect the material and to place the same before the detaining authority for formulation of the grounds of detention based on which subjective satisfaction has to be derived. (ii) It is mentioned that it is necessary to prevent the detenue from acting in any manner prejudicial to the security of the State, when the activities of the detenue as alleged are such, which if taken correct can be termed to be prejudicial to the maintenance of the public order. (iii) Period of detention has been fixed as twelve months, when the detaining authority (District Magistrate) has no such power to fix the period of detention. The order of detention tested on the aforesaid circumstances in the birds eye view would warrant its quashment. 6. Copy of the grounds of detention, contains allegations as reflected in the dossier prepared by SSP and it is because of that, in the order it has been mentioned that grounds of detention as placed by the SSP detention has become imperative, but the detaining authority has not applied its mind, as the material forming base for the dossier is not shown to have been placed before him, same is not also available on the detention record, nor any such material has been supplied to the detenue, which in turn has also impaired the detenue from making any effective representation, so infringement of right guaranteed under Article 22 (5) of the Constitution. 7. It shall be quite apt to quote Para 28 and 29 of the Judgment titled Tahira Haris etc. etc. v. Government of Karnatika and others AIR 2009 SC 2184: "28. Our Constitution provides adequate safeguards under clauses (5) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay". "29. Our Constitution provides adequate safeguards under clauses (5) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay". "29. On proper construction of clause (5) of Article 22 read with section 3 (3) of COFEPOSA Act. It is imperative for valid continuance of detention that the detenue must be supplied all documents, statements and other material relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenue and the detenue was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution." 8. In the totality of the facts, circumstances and the law as referred above, the order of detention appear to have been passed absolutely in violation of the rights guaranteed under Article 22(5) of the Constitution of India. Thus detention order bearing No. 35/DMB/PSA/09 dated 08.09.2009 is quashed. Detenue, namely, Firdous Ahmad Malik, S/o Ghulam Ahmad Malik R/o Drangbal, District Baramulla is ordered to be released forthwith provided he is not required in connection with any other case. 9. Detention record as produced be returned to the appearing counsel for the respondents. Disposed of as above.