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2011 DIGILAW 388 (JK)

Abdul Latief v. State of J&K and others

2011-08-02

HASNAIN MASSODI

body2011
JUDGMENT Honble Mr. Justice Hasnain Massodi, Judge 1. Challenge to Order No. DMR/PSA/OF 2010/28 dated 30.10.2010, whereby District Magistrate, Ramban respondent No. 2 herein, has ordered preventive detention of Shri Abdul Latief son of Ghulam Mohd Malik resident of Shagan Tehsil and District Ramban (hereinafter referred to as detenue), is to succeed for the following reasons: 6. 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 detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The endorsement on the reverse of the detention order made by the Executing Officer - SI Rajesh Thappa, PID No. BXJ/045661 of P/S Banihal, 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 grounds of detention make reference to case - FIR No. 122/2010 under section 13/ 18/ 19/ 20/ 21, Unlawful Activities (Prevention) Act and 3/ 6 Indian Wireless Telegraphy Act P/S Banihal, to have been registered against detenue. It appears that the said case has weighed with respondent No. 2 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 have 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 'In the light of above grounds which are based on the dossier submitted by the Superintendent of Police Ramban and in view of the prevailing situation in the District Ramban and also your persistent lot of supporting/working in the cause of militants, you have considered a potential threat to the security of the State'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention record does 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 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 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. 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 . 7. Article 22(5) of Constitution of India guarantees a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978 in the present case, 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 security of the State or to maintenance of the public or security of the State. 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 security of the State or to maintenance of the public or security of the State. Article 22(5) of the Constitution and section 13 of the Act, make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making representation against his detention. The object is to enable the detenue to convince the Detaining Authority and the Government, as the case may be, that all the 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 the detenue be informed with all possible clarity what is/are apprehended activity/ies that persuade the 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 grounds of detention, that appear to have persuaded the respondent No. 2 to order preventive detention of the detenue, allege that 04 Motorola Wireless Sets and 02 Binoculars were recovered from the possession of detenue. There is nothing on record to suggest that the seizure memo, vide which the alleged recoveries were made, were ever supplied to detenue. The detenue is also alleged to have communicated the information of movement of security forces to the cadres of outfit. The militants/outfit, to whom the information was being allegedly transmitted by the detenue, is/are not identified nor their identity disclosed. The detenue is not informed with sufficient clarity the exact allegations levelled against him. The detention record does not reveal that the detenue is furnished the necessary details of occurrences/events attributed to him. The detenue, in absence of such details, could not be expected to have been in a position to give his side of the story and persuade respondent No. 2 and other respondents that the allegations against the 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. 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 respondent No. 2. The detenue has been kept guessing about the facts and events that weighed with respondent No. 2 and prompted respondent No. 2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the 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 the 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. 8. The detaining authority 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 his detention was considered by the government and approved. The detaining authority, respondent No. 2, has in effect violated constitutional and statutory rights of the detenue guaranteed under Article 22(5) of the Constitution of India and Section 13 of 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. DMR/PSA/OF 2010/28 dated 30.10.2010, passed by the District Magistrate, Ramban respondent No. 2, directing detention of Shri Abdul Latief son of Ghulam Mohd Malik resident of Shagan Tehsil and District Ramban, quashed. 4. 3. Viewed thus, the petition is allowed and detention order No. DMR/PSA/OF 2010/28 dated 30.10.2010, passed by the District Magistrate, Ramban respondent No. 2, directing detention of Shri Abdul Latief son of Ghulam Mohd Malik resident of Shagan Tehsil and District Ramban, quashed. 4. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMR/ PSA/OF 2010/28 dated 30.10.2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMR/PSA/OF 2010/28 dated 30.10.2010. 5. Detention record be returned to the counsel for respondents. 6. Disposed of.