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2011 DIGILAW 417 (JK)

Shabir Ahmad Ganai v. State of J&K and others

2011-08-11

HASNAIN MASSODI

body2011
JUDGMENT Honble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. DMS/PSA/02/2011 dated 07.04.2011, whereby District Magistrate Srinagar respondent No. 2 herein, has ordered preventive detention of Shri Shabir Ahmad Ganie son of Ghulam Mohi-ud-din Ganie resident of Zainakot, H.M.T. Srinagar (herein after referred to as 'detenue') and directed his lodgement in Kote-Bhalwal Jail, Jammu, must succeed for the following reasons: 1. The grounds of detention make reference to case - FIR No. 153/2010 under section 147, 148, 149, 535, 336, 427, 153-A RPC; FIR No. 189/2010 under section 147, 148, 149, 535, 336, 341, 427, 307, 435 RPC, 7/27 A.Act of Police Station Parimpora; and FIR No. 76/2010 under section 307, 147, 148, 336, 332, 427 RPC of Police Station Batamaloo, to have been registered against the detenue. The involvement of detenue in the aforementioned cases appears to have heavily 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 detenue. It is pertinent to point out that the detaining authority, in grounds of detention after detailing 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 public order.....'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention 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 cases, were ever supplied to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. 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), Constitution of India and Section 13, J&K Public Safety Act, 1978, 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 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 ). 2. Preventive detention as held in A.K.Gopalan Vs. State of Madrass (1950) SCR 88 and reiterated in Rekha Vs. State of Tamilnadu AIR 2011 SCW 2262 is by nature repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) while emphasising that Article 22(3)(b) Constitution of India is to be read an exception to Article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later, observed; 'Since however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Panel Code and other penal statues) can deal with the situation, recourse to the preventive detention law will be illegal'. 2. The Court further observed: It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as 'jurisdiction of suspicion', The Detaining Authority passes the order of detention on subjective satisfaction. Preventive detention is often described as 'jurisdiction of suspicion', The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. 3. The Court making reference to law laid down in Kamleshwar Ishwar Prasad Patel Vs. Union of India and Others (1995) 2 SCC 51 (para 49) observed: 'the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue'. 4. The Court quoted with approval following observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasising the need to ensure that the Constitutional and Statutory safeguards available to a detenue were followed in letter and spirit observed; But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at-least those safeguards are not denied to the detenu's 5. Law on the subject was succinctly laid down by the apex Court in Abdul Latif Abdul Wahab Sheikh Vs. B. K. Jha and another (1987) 2 SCC 22 in following words: 'The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard'. 3. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard'. 3. The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is called in question in a Court of Law, the first and foremost task before the Court is to see whether the procedural safeguards guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to. 4. Let us, now shift focus to the present case to see whether the procedural safeguards have been meticulously and strictly followed while ordering preventive detention of petitioner. 5. The detenue appears to have been initially put under preventive detention vide order No. DMS/PSA/64/2010 dated 18.08.2010. The detention order was questioned in HCP No. 248/2010. The challenge succeeded and the detention order was quashed vide judgement dated 04.03.2011. The detenue, though required to be released, was slapped with another detention order No. DMS/PSA/02/2011 dated 07.04.2011, as pleaded in para 03 of the petition. 6. The grounds of detention that lay foundation for the detention order in question are in substance same as were the grounds of detention pressed into service while making the earlier detention order dated 18.08.2010. The detaining authority in grounds of detention intriguingly has relied upon the grounds taken in the earlier detention order. 7. It is well settled law that when a detention order is quashed by the Court, the grounds of the order so quashed should not be taken into consideration, either as whole or in part, even alongwith fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order. It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order. The Detaining Authority therefore cannot consider the grounds that were relied upon to pass the earlier detention order or activities that were detailed in such grounds. The position may be different where the earlier detention order is revoked due to technical reasons. In such a situation the grounds of detention may be used to make fresh detention order after removal of technical impediment or loopholes. The position may be different where the earlier detention order is revoked due to technical reasons. In such a situation the grounds of detention may be used to make fresh detention order after removal of technical impediment or loopholes. However, no such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. A reference in this regard may be made to law laid down in, Chhagan Bhai, Baghwan Bhai Qahar Vs. N.L. Kumar AIR 1989 SC 1234 , Jabbarkhan Azadkhan Vs. State of Gujrat, Masrat Alam Bhat Vs. State & Others 2003 (II) SLJ 570, Mst. Zahida Vs. State & Others 2008 (1) SLJ 245, Masrat Alam Bhat 2008 (II) SLJ 689. 8. 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 the 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. 6. In the instant case the detenue and his 'associates' are alleged to be responsible to instigate the general public to resort to violence, cause loss to property and injure police personnel. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. 6. In the instant case the detenue and his 'associates' are alleged to be responsible to instigate the general public to resort to violence, cause loss to property and injure police personnel. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of 'associates', nor the particulars of police personnel, who are alleged to have been attacked by the detenue and his associates nor the particulars of property(ies). The detention record does not reveal that the detenue is furnished the details of occurrence(s) attributed to detenue and his unnamed and unidentified 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 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. 7. Viewed thus, the petition is allowed and detention order No. DMS/ PSA/02/2011 dated 07.04.2011, passed by the District Magistrate, Srinagar respondent No. 2, directing detention of Shri Shabir Ahmad Ganie son of Ghulam Mohi-ud-din Ganie resident of Zainakot, H.M.T. Srinagar, quashed. 8. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMS/ PSA/02/2011 dated 07.04.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMS/PSA/02/2011 dated 07.04.2011. 9. Detention record be returned to the counsel for respondents. 10. Disposed of.