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2011 DIGILAW 406 (JK)

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

2011-08-09

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. 46-DMK/PSA of 2010 dated 26.02.2011, of District Magistrate, Kupwara respondent No. 2 herein, whereby one Shri Ghulam Nabi Shah son of Abdul Jabbar Shah resident of Shah Mohalla Sogam District Kupwara (herein after referred to as 'detenue'), has been placed under preventive detention, must succeed for the following reasons:- III) The detaining authority has ordered detention of detenue "for a maximum period". The expression used by the respondent No. 2 as regards the period of detention is unknown to law. The detention order is to stay in force for a period of 12 days in terms of Section 8, J&K Public Safety Act, 1978 and is to lose its force with efflux of time unless it is approved by the Government in terms of Section 8(4) of the Act. The respondent No. 2, by rushing to the conclusion as regards period of detention before the detention order was to pass through the necessary filtration envisioned in Section 13, 14 and 17 has violated the Constitutional and Statutory rights of the detenue. The expression "maximum period" must have dissuaded and discouraged the detenue from making any representation as the detaining authority had closed his mind and by using the expression made it loud and clear that he was not amenable to explanation, if any, given by the detenue. IV) 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 grounds of detention make reference to case " FIR No. 58/2002 under section 302, 307, 120-B RPC, 7/ 25 A. Act; FIR No. 85/2002 under section 302, 427 RPC, 7/ 27 A. Act and FIR No. 60/2002 under section 4/ 5 Exp. Sub. Act, 307 RPC at Police Station Sogam, to have been registered against detenue. The involvement of detenue in the aforementioned case appears to have heavily weighed with the detaining authority while making detention order. The endorsement, on the reverse of detention order made by the Executing Officer " ASI Gh. Sub. Act, 307 RPC at Police Station Sogam, to have been registered against detenue. The involvement of detenue in the aforementioned case appears to have heavily weighed with the detaining authority while making detention order. The endorsement, on the reverse of detention order made by the Executing Officer " ASI Gh. Hassan No. 55/KP of DPL Sogam, 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 record does not indicate that copies of aforementioned First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case were ever supplied to detenue. 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 reveals that none of the documents referred to in the detention order was 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 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 ). V) 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 prejudicial to 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 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 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 'OGW' of 'HM/LeT' outfit. The words/expressions like 'HM', 'LeT' and 'POK' are too vague to make the detenue aware of 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 detenue. In the instant case the detenue is alleged to be 'OGW' of 'HM/LeT' outfit. The words/expressions like 'HM', 'LeT' and 'POK' are too vague to make the detenue aware of 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 detenue. The reference to the activities of 'HM' and 'LeT' outfits is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be associated. The grounds of detention record that one AK 47 Rifle, 02 Mag., 50 Rds, and 02 number RPG Shells were recovered from the possession of detenue. However, there is nothing on record to suggest that the material record or the seizure memo, vide which the alleged recoveries were made, were ever supplied to detenue. The detenue is alleged to be motivating youth to join militancy. The detenue has not been furnished the details of 'youth' alleged to have been motivated by detenue to join militancy. The detenue is not informed with sufficient clarity the exact allegations leveled against him. The counter affidavit as also detention record, do 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 the 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. 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 the 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. 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. VI) 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. 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 . 2. Viewed thus, the petition is allowed and detention order No. 46-DMK/PSA of 2010 dated 26.02.2011, passed by the District Magistrate, Kupwara respondent No. 2, directing detention of Shri Ghulam Nabi Shah son of Abdul Jabbar Shah resident of Shah Mohalla Sogam District Kupwara, quashed. 3. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 46-DMK/PSA of 2010 dated 26.02.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 46-DMK/PSA of 2010 dated 26.02.2011. 4. Detention record be returned to the counsel for respondents. 5. Disposed of.