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2011 DIGILAW 260 (JK)

Abdul Ahad Parra v. State & Ors.

2011-05-19

MOHAMMAD YAQOOB MIR

body2011
1. Pursuant to order No. 23-DMK/PSA of 2010 dated 03.11.2010, passed by District Magistrate, Kupwara, detenue has been detained and ordered to be lodged in Kotbalwal Jail, Jammu for a period of six months. 2. Detention record as produced reveals that the order of detention has been approved and finally confirmed and the period of detention has been fixed as 12 months as is clear from Govt. order No. Home/PB-V/11/2011 dated 2.1.2011. 3. Validity of the order of detention is questioned on various grounds. First it is contended that the District Magistrate who passed the order of detention was not empowered to fix the period of detention, same is domain of the Government. Fixing the period of six month by the District Magistrate is impermissible as the same must have prejudiced the fair consideration by the Advisory Board. Similar position has been dealt with by the Hon'ble Apex Court in the judgment captioned Mathan Singh Tarasika v. State of Punjab, AIR (39) 1952 SC 27, wherein it has been held as under- "The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.I 1(2) that if the Advisory Board reports that there is no sufficient cause for the detention, the person concerned would be released forthwith, the direction in the order dated 30.7.1951 that the petitioner should be detained till 31.3.1951 could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner's case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. 4. The second contention is that in the order of detention it is recorded that to prevent the detenue from acting in any manner prejudicial to the security of the State, maintenance of public order, which renders the order as invalid. 5. 4. The second contention is that in the order of detention it is recorded that to prevent the detenue from acting in any manner prejudicial to the security of the State, maintenance of public order, which renders the order as invalid. 5. The submission made has prevailing force in view of the law as has been laid down in the judgment as referred to by the learned counsel for the petitioner captioned G. M. Shah v. State of J & K, reported in (1980)1 SCC132:2010 (6) JKJ 850 [SC]. It is relevant to quote para 9 of the said judgment: "9. As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia v. State of Bihar one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle represent­ing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expression "acting in any manner prejudicial to the security of the State " and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the main­tenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenue has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali and Satya Brata Ghose v. Arif Ali." 6. The third ground of attack is that the detenue has not been informed about his right to make representation against the order of detention, either to the District Magistrate or to the Government. 7. The third ground of attack is that the detenue has not been informed about his right to make representation against the order of detention, either to the District Magistrate or to the Government. 7. The detention record reveals that vide letter No. DMK/PSA/10/278-81 dated 3.11.2010, detenue has been informed as under: "You may make a representation to the Government against the said detention order, if you so desire." but the detenue has not been informed about his right to make representation to the District Magistrate who has passed the order of detention. When it is so, his right has been infringed which in turn renders the order of detention as invalid. 8. Learned counsel for the petitioner has rightly placed reliance on the judg­ment State of Maharashtra & ors v. Santosh Shankar Acharya reported in AIR 2000 SC 2504 , wherein it has been held "detenue will have a right to make representation to the Detaining Authority so long the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenue that he has a right to make representation to the Detaining Authority, would constitute an infraction of the valuable Constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such failure would make the order of detention invalid." 9. It may be apt to mention that this Court in the judgment captioned Farooq Ahmad Bhat v. State & anr. (HCP No. 285/2010), in detail has dealt with the issue while relying on the judgment as referred and finally it was concluded that the detenue has a right to make representation to the District Magistrate (Detaining Authority). 10. In the backdrop of aforesaid settled position of law, the order of detention impugned being invalid is quashed. Detenue is ordered to be released forthwith provided he is not required in connection with any other case. Detention records as produced shall be returned back to the learned counsel for the respondents.