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2011 DIGILAW 420 (JK)

Tariq 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. 36/DMS/PSA/2011 dated 10th March 2011, of District Magistrate, Shopian respondent No. 2 herein, whereby one Shri Tariq Ahmad Ganai son of Late Mohammad Yaqoob Ganai resident of Ganai Mohallah, Meemender District Shopian (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: 2. The grounds of detention make reference to case - FIR No. 90/2010 under section 148, 149, 336, 332, 427 RPC; FIR No. 398/2010 under section 436, 148,149 RPC; and FIR No. 396/2010 at P/S Shopian, 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 available 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. 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 "In view of above facts, it is evident that your activities are highly prejudicial to the peace/tranquility/sovereignty and territorial integrity of the State/country". 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) 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 ). 3. Article 22(5) of 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 the maintenance of public order or security of the State. Article 22(5), Constitution of India 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. 4. In the instant case the detenue alongwith his associates is alleged to have instigated the youth to take part in stone pelting and damaging government establishments. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of youth, who are stated to have been instigated by detenue to indulge in stone pelting, and damaging government establishment. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of youth, who are stated to have been instigated by detenue to indulge in stone pelting, and damaging government establishment. The detenue is alleged to have been motivated by "Pervaiz Ahmad Bhat" and "Nissar Ahmad Najar" to join Hurriyat (G). The detenue was not provided particulars of "Pervaiz Ahmad Bhat" and "Nissar Ahmad Najar" and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Pervaiz Ahmad Bhat" and "Nissar Ahmad Najar". 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 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. 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 Detaining Authority respondent No. 2 has slapped the detention order on his subjective satisfaction that the 'activities' of detenue are "prejudicial to the security, sovereignty, integrity, peace, tranquillity of the State". 3. The Detaining Authority respondent No. 2 has slapped the detention order on his subjective satisfaction that the 'activities' of detenue are "prejudicial to the security, sovereignty, integrity, peace, tranquillity of the State". It may be recalled that in terms of Section 8 J&K Public Safety Act, 1978, detention order can be passed to prevent a person from acting in any manner 'prejudicial' to the "security of State" or "maintenance of public order". The detaining Authority in the present case passed detention order on the grounds i.e. "security, sovereignty, integrity, peace, tranquillity of the State" which depicts total non-application of mind. It appears that the Detaining Authority has not been himself satisfied whether the activities of the petitioner were likely to prejudice the "security of the State", "sovereignty of the State", "integrity of the State", "peace of the State" or "tranquillity of the State". 5. Furthermore the grounds "sovereignty, integrity, peace, tranquillity of the State", are foreign to Section 8(3)(b) of the Act. 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. 4. 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 . 6. Viewed thus, the petition is allowed and detention order No. 36/DMS/PSA/2011 dated 10th March 2011, passed by the District Magistrate, Shopian respondent No. 2, directing detention of Shri Tariq Ahmad Ganai son of Late Mohammad Yaqoob Ganai resident of Ganai Mohallah, Meemender District Shopian, quashed. 7. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 36/DMS/PSA/2011 dated 10th March 2011. 7. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 36/DMS/PSA/2011 dated 10th March 2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 36/DMS/PSA/2011 dated 10th March 2011. 8. Disposed of.