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2011 DIGILAW 390 (JK)

Ghulam Nabi Malik v. State of J&K and others

2011-08-02

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge is to order No. DMS/PSA/144/2010 dated 08.02.2011, of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri Ghulam Nabi Malik son of Abdul Ahad Malik resident of Shell Hall Handwara at present Barthana, Qamarwari, District Srinagar (herein after referred to as 'detenue') has been placed under preventive detention and his lodgment directed in Kot Bhalwal Jail Jammu. The petitioner is brother of detenue and thus interested in his life and liberty and competent to maintain the petition. 2. The preventive detention of the detenue is questioned on the grounds that the respondents while detaining the detenue, have violated his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act 1978. 3. The respondents, in their counter affidavit, dispute the averments made in the petition and insist that the activities of detenue were highly prejudicial to the maintenance of public order. The detention order is said to have been approved by the State Advisory Board and also by Government vide order No. Home/PB-V/(Det) 835 of 2011 dated 28.03.2011. The Learned Additional Advocate General has made available detention record to lend support to the case set up in the counter affidavit. 4. I have gone through the petition and counter affidavit as also detention record. I have heard learned counsel for the petitioner as also learned Additional Advocate General, appearing for respondents. 5. The Detention Order is liable to be quashed for the following reasons:- I) The Detention order makes mention of material record such as "dossier and other connecting documents" relied upon by the Detaining Authority while making the detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police, Srinagar. 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 ASI, Lal Din No. 7375/NGO of P/S Khanyar, 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. 84/2009 under section 13 ULA (P) Act and 188 RPC, Police Station Khanyar, to have been registered against the detenue. The involvement of detenue in aforementioned case appears to have heavily weighed with detaining authority while making detention order. The record does not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case, were ever supplied 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 "Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of 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 Government Advocate reveals that none of the documents referred to in the detention order was ever supplied to the 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. 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 ). II) Article 22(5) Constitution 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 highly prejudicial to the 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 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 the detenue be informed with all possible clarity what is/are 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 present case the reasons, spelt out in the grounds of detention, include an apprehension that the detenue is alleged to be affiliated with Hurriyat Conference (G). It is alleged in the grounds of detention that detenue is sponsoring programmes and forcing the general public to participate in such programmes. In the present case the reasons, spelt out in the grounds of detention, include an apprehension that the detenue is alleged to be affiliated with Hurriyat Conference (G). It is alleged in the grounds of detention that detenue is sponsoring programmes and forcing the general public to participate in such programmes. The detenue is alleged to have carried out illegal programmes alongwith secessionists "by motivating youth to join terrorist and secessionist organizations". The detenue is also alleged to have been "found to resort to various coercive measures to make the general public to observe strikes and protests" and "disrupt public tranquility and create an atmosphere of chaos". The grounds of detention do not depict sufficient particulars of events/ dates, on which alleged protests were held, making it impossible for the detenue to make an effective representation against his detention. It was incumbent upon the Detaining Authority to give adequate information regarding identity of secessionists, youths and associates, with whom the detenue was alleged to have associated to indulge in subversive activities. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear to enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged activities that make out a ground for his preventive detention. The counter affidavit as also detention record do not reveal that the detenue is furnished the necessary details of occurrence(s) 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 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. 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. 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 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. 6. Viewed thus, the petition is allowed and detention order No. DMS/PSA/144/2010 dated 08.02.2011,, passed by the District Magistrate, Srinagar respondent No. 2, directing detention of Shri Ghulam Nabi Malik son of Abdul Ahad Malik resident of Shell Hall Handwara at present Barthana, Qamarwari, District Srinagar, quashed. 7. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. DMS/ PSA/144/2010 dated 08.02.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMS/PSA/144/2010 dated 08.02.2011. 8. Detention record be returned to the counsel for respondents. 9. Disposed of.