Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 167 (JK)

Shabir Ahmed v. State of J&K & Ors.

2011-04-07

HASNAIN MASSODI

body2011
1. Challenge to order No.DM/DODA/PSA/2KX/78-85 dated 16th August 2010. of District Magistrate, Doda - respondent No.2 herein, whereby one Shri Nissar Ahmad @ Gypsy son of Gh Mohd Bhat resident of Beoli Tehsil and District Doda, (herein after referred to as "detenue") has been placed under preventive detention, must succeed for following reasons:- (I) The Constitutional and Statutory safeguards, guaranteed to a person detained under preventive detention law, are meaningless unless and until the detenue is made aware of and furnished all the material that weighed with the Detaining Authority while making detention order. 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-Mohd Sabar, S.I. No.3722/NGO of P/S Doda, 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 Nos.63/1998 u/s 302/34 RPC, 3/25 Arms Act and FIR No.71/1998 u/s 7/25 Arms Act to have been registered against detenue. 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 Report(s), statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case has not been furnished to detenue. The detention record does not reveal that copies of FIR(s) or material collected during investigation of aforementioned cases was. at the time of execution of detention warrant or immediately thereafter, made available to 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 detention order is based is supplied to 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. 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 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 1 case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression in I 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 HC-707; and Tahir Haris v. State and Others AIR 2009 SC 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 "OG W" of "MM" outfit, The words/expressions like "OGW" and "HM" arc too vague to I make the detenue aware of the exact accusation levelled against him. 1 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 "HM" outfit is rendered meaningless in view of non-description of organization with which the detenue is alleged to be associated. The grounds of detention allege that some arms and ammunition were recovered from the possession of the detenue. There is nothing on record to suggest that the seizure memo, vide which the alleged recoveries were made, were ever supplied to the detenue. The grounds of detention also mention that the detenue is motivating "youth" to join militant ranks. However, the detenue has not been furnished the particulars of youth, alleged to have been motivated by detenue to join militant ranks. The detention record does not reveal that the detenue is furnished the necessary details of occurrences/events attributed to him. It was incumbent upon the Detaining Authority to give adequate information regarding identity of militants, persons and associates, with whom the detenue was alleged to have associated to indulge in 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. 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 respondent No. 2. The detenue has been kept gviessing about the facts and events that weighed with the respondent No. 2 and prompted the respondent No. 2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the detenue. The detenue has been kept gviessing about the facts and events that weighed with the respondent No. 2 and prompted the respondent No. 2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the 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 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, 2010 (6) JKJ 73KSC); 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 2009 219 : 2009 (3) JKJ HC-707. (Ill) The Detaining Authority - respondentNo.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 . 2. Viewed thus, the petition is allowed and detention order No.DM/DODA/PSA/2KX/78-85 dated 16th August 2010, passed by the District Magis­trate, Doda - respondent No. 2, directing detention of Shri Nissar Ahmad @ Gypsy son of Gh Mohd Bhat resident of Beoli Tehsil and District Doda, quashed. 3. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DM/DODA/PSA/2KX/78-85 dated 16th August 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No.DM/DODA/PSA/2KX/78-85 dated 16th August 2010. 4. Detention record be returned to the counsel for respondents. Disposed of.