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2011 DIGILAW 104 (JK)

Mohd. Yousuf Rather v. State of J&K & Ors.

2011-03-11

HASNAIN MASSODI

body2011
1. Challenge in this petition is to order No. DMB/PSA/182 of 2010 dated 21st June 2010, of District Magistrate, Budgam respondent No. 2 herein, whereby one Mohd Yousuf Rather @ Nadeem son of Late Ghulam Mohd Rather resident of Sandipora, Budgam (herein after referred to as "detenue") has been placed under preventive detention and his lodgment directed in Central Jail, Srinagar. 2. The petitioner's case is that the detenue initially was detained vide detention order No. DMB/PSA/141 of 2008 dated 27th September 2008, which was quashed by the Court vide order dated 10 April 2009. The detenue was thereafter detained vide order No. DMB/PSA/174 of 2009 dated 16.12.2009, which was revoked vide Government Order No. Home/PB-V/247/2010 dated 11th February 2010. The detenue was once again detained videNo.DMB/PSA/181 of 2010 dated 22.03.2010, which also came to be revoked vide Government Order No. Home/PB-V/1050/2010 dated 3rd May 2010. It is stated that detention order No. DMB/PSA/182 of 2010 dated 21st June 2010 has been slapped on detenue on the same grounds, which were taken in earlier detention orders. The respondents, it is insisted, have ignored to provide material, relied upon by Detaining Authority to order detention to the detenue and thus deprived detenue of his Constitutional and Statutory right to represent against his detention. 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. The detention order is said to have been approved by the State Advisory Board and also by Government vide order No. Home/PB-V/1688/2010 dated 02.08.2010. The learned Deputy Advocate General has made available deten­tion record to lend support to the case set up in the counter affidavit. Heard, perused and considered. 4. 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 detention order. The detention order also makes reference to a communication received from Superintendent of Police, Budgam vide No. Legal/Dos/10/1602-05 dated 09.06.2010. The detention record, however, reveals that none of the documents referred to in the detention order, was ever supplied to detenue. The detention order also makes reference to a communication received from Superintendent of Police, Budgam vide No. Legal/Dos/10/1602-05 dated 09.06.2010. The detention record, however, reveals that none of the documents referred to in the detention order, was ever supplied to detenue. The endorsement on the reverse of the detention order made by the Executing Officer - Mohd Abdullah, ASI No. 30/CID of P/S Budgam, 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. 109/1999 under section 121-A, 122 RFC, 7/25 Arms Act, P/S Budgam, 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, statement(s) 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 the respondent No. 2 in grounds of detention, after detailing the background, in which aforesaid case was registered against detenue, proceeds to opine "......it is evident that your activities are highly pre-judicial 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 detention record made available by learned Deputy Advocate General reveals that none of the documents referred to in the detention order was ever stipplied to 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 such material available, that the detenue can make an effort to convince detaining authority and thereafter Government, that their apprehensions as regards activities of the detenue are baseless and misplaced. It is only after the detenue has all such material available, that the detenue can make an effort to convince detaining authority and thereafter Government, that their apprehensions 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. 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 (S.L.J. 2009 (I) 219) : 2009 (3) JKJ 707 [HC]; 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 maintenance of public order or security of State. 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 a representation against his detention. 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 responsible for instigating large number of people to hold agitations, pelt stones upon government installations/offices/police/CRPF personnel and cause damage to public/private property. The detenue is not furnished with the particulars of persons, who are stated to be instigated by detenue for indulging in stone pelting nor informed with sufficient clarity the exact allegations leveled and furnished the particulars of persons/youth, who are stated to be responsible for indulging in stone pelting, nor the particulars of police and security personnel, who are alleged to have been attacked by the detenue by carrying violent attacks on them. The counter affidavit as also detention record, do not reveal that the detenue is furnished the necessary details of occurrence(s) attributed to him. Moreover, grounds of detention do not contain details of "private/public property" or their exact locations, which are alleged to be damaged by the youth/persons instigated by detenue. The detenue, in absence of such details, could not be expected to have been in a position to give his side of the story and persuade the detaining authority that the allegations against the detenue were bereft of any basis. To sum up, the grounds of detention that constitute basis for the detention order in question are ambiguous, vague, uncertain and hazy. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenue has been kept guessing about the facts and events that weighed with the detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenue. 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 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 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 AIR 1953; Chaju Ram v. State of J & K, 2010 (6) JKJ 73KSC): 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 2009 (I) SLJ 219 : 2009 (3) JKJ 707 [HC]. Ill) The detaining authority, as evident from the record available on the file, while arriving its subjective satisfaction as regards necessity to place the detenue under preventive detention, has taken into, consideration previous detention orders slapped on the detenue and subsequently quashed by the Court or revoked by competent authority. The detention order No. DMB/PSA/141 of 2008 dated 27.09.2998, was quashed in HCP No. 254/2008 vide order dated 10th April 2009. The detention order No. DMB/PSA/174 of 2009 dated 16.12.2009, was revoked by competent authority vide Government Order No. Home PB-V/247/2010 dated 11.2.2010 and detention order No. DMB/PSA/181 of 2010 dated 22.03.2010 was revoked vide Government Order No. Home/PB-V/1050/2010 dated 03.05.2010. A closer look at the grounds of detention in the present case reveals that the detaining authority, while formulating grounds of detention, had in its mind the detention orders made against detenue that were either quashed or revoked. It needs no emphasis that when a detention order is quashed, the grounds on which such detention order is based do not merit to be considered subsequently even alongwith fresh grounds of detention for drawing the subjective satisfaction, to pass fresh order of detention. Similarly, revocation of detention order renders such order unfit for consideration of detaining authority at the subsequent stage. The detaining authority can make fresh order of detention only on fresh grounds that have come into existence after quashment/revocation of previous detention orders. The detention order, on this count also, cannot stand legal scrutiny. Similarly, revocation of detention order renders such order unfit for consideration of detaining authority at the subsequent stage. The detaining authority can make fresh order of detention only on fresh grounds that have come into existence after quashment/revocation of previous detention orders. The detention order, on this count also, cannot stand legal scrutiny. IV) 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 approved. The respondent No. 2 has in effect violated Constitutional and Statutory rights of detenue, guaranteed under Article 22 (5), Constitution of India and Section 13, Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and others v. Santosh Shankar Acharya, AIR 2000 SC 2504 . 5. For the reasons discussed, the petition is allowed and detention order No. DMB/PSA/182 of 2010 dated 21st June 2010, passed by the District Magistrate, Budgam - respondent No. 2, directing detention of Mohd Yousuf Rather @ Nadeem son of Late Ghulam Mohd Rather resident of Sandipora, Budgam, quashed. 6. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMB/PSA/182 of 2010 dated 21st June 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMB/PSA/182 of 2010 dated 21st June 2010. 7. Detention record be returned to the counsel for respondents. Disposed of.