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2011 DIGILAW 192 (JK)

Nasir Ahmad Ganai 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. 140/DMB/PSA/10 dated 17th September 2010, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Shri Nasir Ahmad Ganie son of Gh Mohammad Ganie resident of Raipora, Palhalan Tehsil Pattan District Baramulla (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 16. The respondent No. 2 has, at the very threshold, ordered detention of detenue for a period of one year. The respondent No. 2 - a senior officer in the State Administration, is expected to be aware that the detention order made under Section 8(1) of J&K Public Safety Act read with Sub Section (1) is to survive in terms of Section 8 (4) of J&K Public Safety Act, 1978, for a period of 12 days, unless within said period detention order finds approval of the Government. The respondent No. 2 by placing the detenue under preventive detention for a period of one year in one go has not only overstepped his authority and trespassed over the powers of Government but closed all doors for detenue to make a representation against preventive detention. It needs no emphasis that a detenue under Article 22(5) Constitution of India and Section 13 of the J&K Public Safety Act has a valuable right to make a representation against his detention to the Detaining Authority, immediately after the detention is made and thereafter to the Government. The detenue has a right to convince the Detaining Authority that the activities attributed to him and apprehended by the Authority are devoid of any substance; that the detenue is a peace loving citizen and there is no reason to suspect that his acts of omission and commission in any manner are prejudicial and detrimental to the security of the State or maintenance of public order. Once the Detaining Authority orders detention for one year, the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation against his preventive detention. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and Statutory right. Once the Detaining Authority orders detention for one year, the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation against his preventive detention. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and Statutory right. The Detaining Authority by deciding on the period of detention at the initial stage has violated Constitutional and Statutory rights of detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. 17. The grounds of detention make reference to case - FIR No. 71/2010 under section 148,149,336,341,427; FIR No. 73/2010 under section 148,149,336,341,332,436,307 RPC; FIR No. 78/2010 under section 148,149,336,341,332,307,427 RPC, at Police Station Kreeri, to have been registered against detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with detaining authority while making detention order. The endorsement, on the reverse of detention order made by the Executing Officer - Mohammad Hussain, ASI No. 414/B, P/S Kreeri, 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 record does 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 is manifest from factual position as at pre-pares (pre-paras) that your activities are highly pre-judicial 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 reveals that none of the documents referred to in the detention order was supplied to detenue. 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 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 the 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 ). 18. 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. 2. In the instant case the detenue is alleged to be responsible for instigating the 'youth' to indulge in 'heavy stone pelting' and injuring 'security personnel'. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of youth/rioters, who are stated to be responsible for indulging in stone pelting, nor the particulars of security personnel, who are alleged to have been attacked by detenue and other rioters by pelting stones on them. The counter affidavit as also detention record do not reveal that the detenue is furnished the details of occurrences attributed to detenue and his unnamed and unidentified associates. 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. 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. 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. 19. The respondent No. 2 in the concluding para of the grounds of detention claims to be satisfied that the activities of the detenue are 'highly prejudicial to maintenance of public order'. However, the respondent No. 2 in his counter affidavit has averred that the detenue was placed under preventive detention as in the opinion of respondent No. 2 the activities of detenue were 'prejudicial to the security of the State.' There is thus conflict between the grounds of detention, detention order, impugned in the petition, and counter affidavit sworn by detaining authority. The conflict is indicative of non-application of mind by detaining authority. The detaining authority appears to be not sure about the exact ground that persuaded it to make the detention order. It is pertinent to point out that the detaining authority can slap prevention detention if the activities of a person proposed to be detained under the Act are prejudicial to the security of the state or public order. Once the detaining authority has not been able to spell out the exact ground in the detention order that led to detention of detenue, non-application on the part of detaining authority is writ large on the detention order. The detention order merits to be quashed on this ground alone. 20. 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. 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. 140/DMB/PSA/10 dated 17th September 2010, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Nasir Ahmad Ganie son of Gh Mohammad Ganie resident of Raipora, Palhalan Tehsil Pattan District Baramulla, quashed. 4. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 140/DMB/PSA/10 dated 17th September 2010. Resultantly, the respondents are directed to release the detenue from preventive etention, ordered under order No. 140/DMB/PSA/10 dated 17th September 2010. 5. Detention record be returned to the counsel for respondents. 6. Disposed of.