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2011 DIGILAW 438 (JK)

Bilal Ahmad Hajam v. State of J&K and others

2011-08-25

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge to order No. DMS/PSA/07/2010 dated 19.05.2011, of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri Bilal Ahmad Hajam son of Farooq Ahmad Hajam resident of Bonpora Nowgam Srinagar (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reason(s): 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 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 the detenue to convince the 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. 2. In the instant case the detenue along with other associates is alleged to have instigated the youth to resort to stone pelting, injuring police personnel and damaging public property. 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, damaging public property nor the particulars of public property alleged to have been damaged by detenue and his associates. 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. The detenue is also alleged to be behind every stone pelting incident and instigating others to resort to similar activities. 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. The detenue is also alleged to be behind every stone pelting incident and instigating others to resort to similar activities. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear to enable a man of common prudence to explain his stand much less make an effective and meaningful representation. The detenue has been kept guessing about the facts and events that weighed with 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 2009 219. 3. Viewed thus, the petition is allowed and detention order No. DMS/PSA/07/2010 dated 19.05.2011, passed by the District Magistrate, Srinagar respondent No. 2, directing detention of Shri Bilal Ahmad Hajam son of Farooq Ahmad Hajam resident of Bonpora Nowgam Srinagar, quashed. 4. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMS/PSA/07/2010 dated 19.05.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMS/PSA/07/2010 dated 19.05.2011. 5. Detention record be returned to the counsel for respondents. 6. Disposed of.