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2011 DIGILAW 407 (JK)

Javaid Ahmad Zargar 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. 129/DMB/PSA/10 dated 09.09.2010 (herein after "detention order") whereby District Magistrate, Baramulla respondent No. 2 herein, has ordered preventive detention of Shri Javaid Ahmad Zargar son of Bashir Ahmad Zargar resident of Behrampora Rafiabad Tehsil Sopore District Baramulla (hereinafter referred to as detenue), is to succeed for the following reasons: 4. The respondent No. 2 has, at the very threshold, ordered detention of detenue for a period of 06 months. The respondent No. 2 a senior officer in the State Administration, is expected to be aware that the detention order made under Section 8(1) of J&K Public Safety Act read with Sub Section (1) is to survive in terms of Section 8 (4) of J&K Public Safety Act, 1978, for a period of 12 days, unless within said period detention order finds approval of the Government. The respondent No. 2 by placing the detenue under preventive detention for a period of 06 months in one go has not only overstepped his authority and trespassed over the powers of Government but closed all doors for detenue to make a representation against preventive detention. It needs no emphasis that a detenue, under Article 22(5) Constitution of India and Section 13 of the J&K Public Safety Act, has a valuable right to make a representation against his detention to the Detaining Authority, immediately after the detention is made and thereafter to the Government. The detenue has a right to convince the Detaining Authority that the activities attributed to him and apprehended by the Authority are devoid of any substance; that the detenue is a peace loving citizen and there is no reason to suspect that his acts of omission and commission in any manner are prejudicial and detrimental to the security of the State. Once the Detaining Authority orders detention for 06 months, the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation against his preventive detention. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and Statutory right. The Detaining Authority, by deciding on the period of detention at the initial stage, has violated Constitutional and Statutory rights of the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. 5. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and Statutory right. The Detaining Authority, by deciding on the period of detention at the initial stage, has violated Constitutional and Statutory rights of the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. 5. 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 Shri Javed Ahmad, HC No. 28/SPR of P/S Dangiwacha, 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 7/ 25 I.A. Act and FIR No. 40/2010 under section 13 U.L.A. P/S Dangiwacha, to have been registered against the detenue. It appears that the said cases have weighed with respondent No. 2 at the time detention order in question was made. Copies of First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases has 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 cases were registered against detenue, proceeds to opine "It is manifest from factual position as at pre-pares (pre-paras) that your activities are highly pre-judicial to the maintenance of public order". 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 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 does not reveal that copies of FIRs or material collected during investigation of the aforementioned cases was at the time of execution of detention warrant or immediately thereafter made available to the 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 the 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 . 2. 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. 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. 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 apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to the 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. 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 08 rounds of AK 47 were recovered at the instance of detenue and some incriminating documents of banned outfits of HM/Hurkatul Islam 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 the detenue. The detenue is also alleged to have communicated the information to militant cadres about the movement of security forces. The militants, to whom the information was being allegedly transmitted by the detenue, are not identified nor their identity disclosed. 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. 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 respondent No. 2. The detenue has been kept guessing about the facts and events that weighed with the respondent No. 2 and prompted the 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. 3. The respondent no. 2 in the concluding para of the grounds of detention claims to be satisfied that the activities of the detenue "are highly prejudicial to the maintenance of public order." However, the respondent No. 2 in his counter affidavit as also detention order has averred that the detenue was placed under preventive detention as in the opinion of respondent No. 2 the activities of detenue were "prejudicial to the security of State." There is thus conflict between the detention order impugned in the petition and grounds of detention as also counter affidavit sworn by the detaining authority. The conflict is indicative of non-application of mind by the detaining authority. The detaining authority appears to be not sure about the exact ground that persuaded it to make the detention order. It is pertinent to point out that the detaining authority can slap prevention detention if the activities of the person proposed to be detained under the Act are prejudicial to the security of the State or public order. The detaining authority appears to be not sure about the exact ground that persuaded it to make the detention order. It is pertinent to point out that the detaining authority can slap prevention detention if the activities of the person proposed to be detained under the Act are prejudicial to the security of the State or public order. Once the detaining authority has not been able to spell out the exact ground in the detention order that led to detention of the detenue, non-application on the part of the detaining authority is writ large on the detention order. The detention order merits to be quashed on this ground alone. 4. 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 . 5. Viewed thus, the petition is allowed and detention order No. 129/DMB/PSA/10 dated 09.09.2010, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Javaid Ahmad Zargar son of Bashir Ahmad Zargar resident of Behrampora Rafiabad Tehsil Sopore District Baramulla, quashed. 6. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 129/DMB/PSA/10 dated 09.09.2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 129/DMB/PSA/10 dated 09.09.2010. 7. Detention record be returned to the counsel for respondents. 8. Disposed of.