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2011 DIGILAW 405 (JK)

Bilal Ahmad Mir v. State of J&K and others

2011-08-09

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge in this petition is to order No. 2/DMK/PSA/11 dated 11.04.2011, of District Magistrate, Kulgam respondent No. 2 herein, whereby one Shri Bilal Ahmad Mir son of Ab Aziz Mir resident of Qaimoh Tehsil and District Kulgam (herein after referred to as 'detenue') has been placed under preventive detention. The petitioner is wife of detenue and thus interested in his life and liberty and competent to maintain the petition. 2. The petitioner's case is that the detention order 2/DMK/PSA/11 dated 11.04.2011, impugned in the petition, has been made on the same grounds, earlier relied upon to pass Detention Order No. 14/DMK/PSA/ 010 dated 26th August 2010. It is pleaded that the detention order dated 26th August 2010 was challenged in HCP No. 346/2010, and same was quashed on 11.02.2011 by this Court. After quashment of detention order dated 26th August 2010, the respondents were duty bound to let off detenue and that respondents instead continued to have detenue in their custody till 11th April 2011, when subsequent detention order, assailed in the petition, was passed. The respondents are stated to have ignored to provide material, relied upon by Detaining Authority to order detention and thus deprived detenue of his Constitutional and Statutory rights. Grounds of Detention are stated to be vague, non-existent and unfounded. The detenue is said to have been in custody even from the date prior to date of Detention Order dated 11.04.2011. 3. Heard, perused and considered. 4. The Detention Order is liable to be quashed for the following reasons: 5.The respondent No. 2 has intriguingly referred to the grounds of detention to have been prepared by Superintendent of Police Kulgam 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 the grounds of detention so formulated warrant passing of preventive detention. It is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that the 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. 6.The grounds of detention make reference to case - FIR No. 75/2010 under section 307 RPC 7/ 27 A. Act and FIR No. 79/2010 under section 7/ 25 A. Act, 10/ 18 ULA (P) Act at Police Station Yaripora, to have been registered against the detenue. The involvement of detenue in the aforementioned case(s) appears to have heavily weighed with detaining authority while making detention order. The available record as also counter affidavit do not indicate that copies of aforementioned First Information Report(s), statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s), 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 case was registered against detenue, proceeds to opine "It is manifest from factual position as at prepares (pre paras) that your activities are highly prejudicial 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 available record as also counter affidavit reveal that none of the documents referred to in the detention order was 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. 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 ). 7. 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 associated with 'HM' outfit. The detenue is not informed with sufficient clarity the organization, with which the detenue is allegedly associated. The words/ expressions like 'PAK', 'HM', 'POK' are too vague to make the detenue aware of the exact accusation leveled against him. In the instant case the detenue is alleged to be associated with 'HM' outfit. The detenue is not informed with sufficient clarity the organization, with which the detenue is allegedly associated. The words/ expressions like 'PAK', 'HM', 'POK' are too vague to make the detenue aware of the exact accusation 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 the detenue. The reference to the activities of 'HM outfit' is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be associated. The counter affidavit as also available record, do not reveal that the detenue is furnished the details of occurrence(s) attributed to detenue and 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 anther 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 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 a right to submit a representation to the Detaining Authority till the detention was considered by the Government and the Government accorded its approval to the detention. The respondent No. 2 has thus violated Constitutional and Statutory rights of the detenue, guaranteed under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act. The respondent No. 2 has thus violated Constitutional and Statutory rights of the detenue, guaranteed under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act. It would be apt to make a reference in this regard to the law laid down in State of Maharashtra and others versus Santosh Shanker Acharya, AIR 2000 SC 2504 . Viewed thus, the petition is allowed and detention order No. 2/ DMK/PSA/11 dated 11.04.2011, passed by the District Magistrate, Kulgam respondent No. 2, directing detention of Shri Bilal Ahmad Mir son of Ab Aziz Mir resident of Qaimoh Tehsil and District Kulgam, quashed. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 2/DMK/ PSA/11 dated 11.04.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. 2/DMK/PSA/11 dated 11.04.2011. Disposed of.