Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 195 (JK)

Saboor Ahmad Khan v. State of J&K and others

2011-04-22

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. 98/DMB/PSA/2010 dated 13th April 2010, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Shri Saboor Ahmad Khan alias Saboor son of Abdul Rashid Khan resident of Rangwar near Jamia Masjid, Tehsil and District Baramulla (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 21. The respondent No. 2 has, at the very threshold, ordered detention of detenue for a period of 12 months. 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 Government. The respondent No. 2, by placing the detenue under preventive detention for a period of 12 months 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, 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 State. Once the Detaining Authority orders detention for 12 months, 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 the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. 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 the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. It is pertinent to point out that the detaining authority intriguingly has referred to the grounds of detention to have been prepared by Superintendent of Police and placed before the Detaining Authority. The Detaining Authority may get inputs from different agencies including Superintendent of Police of the concerned District. Responsibility to formulate grounds of detention, however, rests with the Detaining Authority. It is Detaining Authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive detention. The detention order, for the said reasons, exhibits total non-application of mind by the Detaining Authority. The detention order is liable to be quashed on this ground alone. 22. 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 endorsement on the reverse of detention order made by the Executing Officer Ab. Jabbar, ASI No. 8361/B of P/S Baramulla, 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. In the instant case, grounds of detention make mention of case FIR No. 70/2003 under section 7/ 25 A. Act registered at Police Station Dangiwacha and FIR No. 61/2009 under section 332 RPC registered at Police Station Baramulla against the detenue. It appears that the said cases have weighed with respondent No. 2 at the time detention order in question was made. 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 Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases 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 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 security of the state". 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 Additional Advocate General reveals that none of the documents referred to in the detention order was ever 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 such material available, that he can make an effort to convince detaining authority and thereafter Government, that their apprehensions as regards activities of 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 ). 23. 23. 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 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. 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 active militant of "HM outfit" and went to 'POK' for obtaining training. The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly affiliated. The words/expressions like 'HM', and 'POK', are too vague to make the detenue aware of exact accusations leveled 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 detenue. The reference to the activities of 'HM' is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be affiliated. The detenue is alleged to have been arrested by security forces alongwith 'arms'. But the detenue has not been furnished the seizure memo, vide which the alleged recoveries were made. The detenue is alleged to be responsible for instigating the 'youth' to indulge in stone pelting. The detenue is also alleged to be indulging in different kinds of criminal activities which have created scare among general public. But the detenue has not been furnished the seizure memo, vide which the alleged recoveries were made. The detenue is alleged to be responsible for instigating the 'youth' to indulge in stone pelting. The detenue is also alleged to be indulging in different kinds of criminal activities which have created scare among general public. The detenue is not furnished with the particulars of 'youth', who are stated to be instigated by detenue for indulging in stone pelting. The detention record does not reveal that the detenue is furnished the necessary details of occurrences attributed to him. 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 detaining 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 ather Versus State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 219. 24. 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 Vs Santosh Shankar Acharya, AIR 2000 SC 2504 . 2. 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 Vs Santosh Shankar Acharya, AIR 2000 SC 2504 . 2. Viewed thus, the petition is allowed and detention order No. 98/ DMB/PSA/2010 dated 13th April 2010, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Saboor Ahmad Khan alias Saboor son of Abdul Rashid Khan resident of Rangwar near Jamia Masjid, Tehsil and District Baramulla, quashed. 3. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 98/ DMB/PSA/2010 dated 13th April 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. 98/DMB/PSA/2010 dated 13th April 2010. 4. Detention record be returned to the counsel for respondents. 5. Disposed of with connected CMP.