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2011 DIGILAW 189 (JK)

Feroz Ahmad Khan 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. DMB/PSA/206 of 2010 dated 25th September 2010, of District Magistrate, Budgam respondent No. 2 herein, whereby one Shri Feroz Ahmad Khan son of Mohd Shaban Khan resident of Pathanpora, Pymus, Tehsil and District Budgam (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 9. The detention order makes mention of material record such as 'dossier and other connecting documents' relied upon by 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/09/2477-80 dated 24.09.2010. 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 detention order made by the Executing Officer - Ab. Majeed, ASI, NOS 108/Bd, 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. 2. The grounds of detention make reference to case - FIR No. 403/2010 under section 147, 148, 149, 188, 427, 336 RPC; FIR No. 405/2010 under section 148, 149, 188, 336, 307, 435, 332 RPC; FIR No. 406/2010 under section 147, 148, 149, 307, 336, 427, 188, 436, 511 RPC; and FIR No. 408/2010 under section 147, 148, 149, 307, 427, 188, 435, 332 RPC, at Police Station Budgam, to have been registered against the detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with detaining authority while making detention order. The record as also counter affidavit do not indicate that copies of aforementioned First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. It is pertinent to point out that the Detaining Authority in Grounds of Detention, after detailing background, in which aforesaid cases were registered against detenue, proceeds to opine 'It becomes, therefore, necessary to detain you under PSA with a view to preventing you from indulging in the activities which are prejudicial to the 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 Government Advocate reveals that none of the documents referred to in the detention order was supplied 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 detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension 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 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 ). 10. 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. 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. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. 3. In the instant case the detenue is alleged to be responsible for indulging in stone pelting, and instigating the youth to create law and order problem. The detenue is not furnished with the particulars of youth, who are stated to be instigated by detenue for indulging in stone pelting. The detenue is again alleged to be responsible for motivating the youth to damage government/public properties and vehicles. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of youth, who are stated to be responsible for indulging in stone pelting, nor the particulars of public property, which are alleged to be damaged by youth having been motivated by detenue. 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 vehicles or their exact numbers, which are alleged to be damaged by the youth, having been instigated by detenue. The detenue is alleged to be close associate of 'Syed Imtiyaz Hyder', an activist of Hurriyat (G). The detenue was not provided particulars of 'Syed Imtiyaz Hyder' and the detenue thus has been prevented from explaining that the detenue had nothing to do with 'Syed Imtiyaz Hyder'. The detenue, in absence of such details, could not be expected to have been in a position to give his side of story and persuade detaining authority that the allegations against 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. The detenue, in absence of such details, could not be expected to have been in a position to give his side of story and persuade detaining authority that the allegations against 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. 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 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. 11. 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 . 4. 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 . 4. Viewed thus, the petition is allowed and detention order No. DMB/ PSA/206 of 2010 dated 25th September 2010, passed by the District Magistrate, Budgam respondent No. 2, directing detention of Shri Feroz Ahmad Khan son of Mohd Shaban Khan resident of Pathanpora, Pymus, Tehsil and District Budgam, quashed. 5. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. DMB/ PSA/206 of 2010 dated 25th September 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. DMB/PSA/206 of 2010 dated 25th September 2010. 6. Detention record be returned to the counsel for respondents. 7. Disposed of.