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2011 DIGILAW 433 (JK)

Javaid Ahmad Zargar v. State of J&K and others

2011-08-24

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. 04/DMB/PSA/2010 dated 21.04.2011, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Shri Javaid Ahmad Zargar son of Nazir Ahmad Zargar resident of Mohallah Mir Sahib Old Town Tehsil and District Baramulla (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: The respondent No. 2 has intriguingly mentioned that 'on the basis of grounds of detention placed before me', the detenue is placed under preventive detention to prevent him from acting in any manner prejudicial to the security of the State. 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 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. 2. The grounds of detention make reference to case - FIR No. 152/2010 under section 148, 149, 336, 427, 323 RPC; FIR No. 153/2010 under section 148, 149, 336, 332, 427 RPC; FIR No. 233/2010 under section 148, 149, 336, 427 RPC; FIR No. 17/2011 under section 148, 149, 336, 307, 332, 427 RPC, at Police Station Baramulla, 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. The endorsement on the reverse of the detention order made by the Executing Officer Shri Ghulam Qadir SI No. 8219/NGO of P/S Baramulla, 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 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. 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. 'It is manifest from factual position as at pre-pares(pre-paras) that your activities are highly pre-judicial to the security of the State'. 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. 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 (S.L.J. 2009 (I) 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. 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 along with his associates is alleged to be responsible for indulging in stone pelting on police and security forces, damaging vehicles and causing injuries to police/CRPF personnel. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of associates, who are stated to be responsible for indulging in stone pelting, nor the particulars of police and security forces, who are alleged to have been attacked by the detenue by pelting stones on them. The detention record does not reveal that the detenue is furnished the necessary details of occurrence(s) attributed to him and his unnamed and unidentified accomplices. Moreover, grounds of detention do not contain details of vehicles or their exact numbers, which are alleged to be damaged by the detenue and his associates. 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 the respondent No. 2 and other respondents that the allegations against the detenue were bereft of any basis. 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 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 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 2009 219. 5. Viewed thus, the petition is allowed and detention order No. 04/ DMB/PSA/2010 dated 21.04.2011, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Javaid Ahmad Zargar son of Nazir Ahmad Zargar resident of Mohallah Mir Sahib Old Town Tehsil and 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. 04/DMB/PSA/2010 dated 21.04.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 04/DMB/PSA/2010 dated 21.04.2011. 7. Detention record be returned to the counsel for respondents. Disposed of.