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2011 DIGILAW 187 (JK)

Abdul Rashid Chopan v. State of J&K and others

2011-04-22

HASNAIN MASSODI

body2011
JUDGMENT Honble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. 28/DMK/PSA/10 dated 23rd November 2010, of District Magistrate, Kulgam respondent No. 2 herein, whereby one Shri Ab Rashid Chopan son of Mohd Sultan Chopan resident of Adijan Tehsil D.H. Pora District Kulgam (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 1. 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. In the instant case grounds of detention in question make mention of case - FIR No. 64/2010 under section 392 RPC, 7/ 25 A.Act, registered at Police Station D.H. Pora against detenue. It appears that the said case has weighed with detaining authority at the time detention order in question was made. Copies of First Information Report, 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. 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 manifest from factual position as at pre-paras that your activities are highly prejudicial to the security of the State'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention order or grounds of detention do not reveal that copies of FIR or material collected during investigation of the aforementioned case 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. 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 versus District Magistrate AIR 1982 SC 1315 ; Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others AIR 1999 SC 3051 ; Union of India versus Ranu Bhandari, 2008 Cri L. J. 4567; Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others 2009 (I) S.L.J 219; and Tahir Haris versus State and Others AIR 2009 SC 2184 . 2. Article 22(5) Constitution of India 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 maintenance of public order or security of the 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 the 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 his apprehended activity/ies that persuaded Detaining Authority to make detention order. 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 his 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. 2. In the instant case the detenue is alleged to be associated with the militants of 'HM' outfit belonging to Peer Panchal Regiment. The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly associated. The word/expression like 'HM' is too vague to make the detenue aware of the exact accusation levelled 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 '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 arranging/providing financial assistance to militants as also arranging transportation of arms/ammunition and cash of militants from one place to another. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of militants, for whom the detenue is alleged to have arranged/provided financial assistance as also transportation of arums/ammunition nor the particulars of the places. 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 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 rights of the detenue to make a representation against his detention are to be taken to have been violated. Reference in this regard may be made to Dr. 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 rights of the detenue to make a representation against his detention are to be taken to have been violated. Reference in this regard may be made to Dr. Ram Krishan Versus The State of Delhi and others, AIR, 1953,; Chaju Ram Versus State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather Versus State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 219. 3. 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 versus Santosh Shankar Acharya, AIR 2000 SC 2504 . 3. Viewed thus, the petition is allowed and detention order No. 28/ DMK/PSA/10 dated 23rd November 2010, passed by the District Magistrate, Kulgam respondent No. 2, directing detention of Shri Ab Rashid Chopan son of Mohd Sultan Chopan resident of Adijan Tehsil D.H. Pora District Kulgam, quashed. 4. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 28/DMK/PSA/10 dated 23rd November 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. 28/DMK/PSA/10 dated 23rd November 2010. 5. Disposed of.