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2011 DIGILAW 439 (JK)

Irshad Ahmad Malik v. State of J&K and others

2011-08-25

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge in this petition is to order No. DM/DODA/PSA/2KX/63-70 dated 16.08.2010, whereby District Magistrate, Doda respondent No. 2 herein, has ordered preventive detention of Shri Irshad Ahmad Malik son of Mohd Amin Malik resident of Bharath Tehsil & District Doda (herein after referred to as 'detenue') and directed his lodgment in Central Jail, Kot Bhalwal, Jammu, must succeed for the following reasons: 1. 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. In the instant case grounds of detention make mention of case FIR No. 167/1999 under section 7/ 27 Indian Arms Act; FIR No. 53/2010 under section 224 RPC P/S Chenani; FIR No. 05/2001 under section 307 RPC & 03 of PSSA P/S Doda; FIR No. 47/2004 under section 120-B,/ 121/ 121-A/ 122/ 123 IPC P/S S.P. Cell Colony New Delhi; FIR No. 215/2010 under section 120-B/124-A RPC and 10/ 13 Unlawful Activities Act read with Section 2 of Prevention of Insult to National Honor Act registered at Police Station Doda against the detenue. It appears that the said cases have weighed with the 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. The endorsement on the reverse of the detention order made by the Executing Officer SI Mohd Sabar No. 3722/NGO of P/S Doda, 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. It is pertinent to point out that the detaining authority, in grounds of detention after detailing background in which aforesaid case was registered against detenue, proceeds to opine 'Keeping in view the above facts and circumstances, it is established that your activities are serious threat to the maintenance of the public peace, tranquility, security and integrity of the state of J&K'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. 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 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 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 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. 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. In the instant case the detenue is alleged to be 'OGW' of 'LeT' outfit. The words/expressions like 'OGW' and 'LeT' are too vague to make the detenue aware of the exact accusation levelled against him. The detaining authority has not to work on assumptions and presumptions that whatever acronyms it is aware of must be necessarily known to the detenue. The detenue is also alleged to have provided information to the militants with regard to movement of security forces. The militants, to whom the information was being allegedly transmitted by the detenue, are not identified nor their identity disclosed. It was incumbent upon the detaining authority to give adequate information regarding identity of militants, with whom the detenue was alleged to have associated to indulge in subversive activities. 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. 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. 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 accorded approval. The respondent No. 2 has thus violated Constitutional and Statutory rights of the detenue, guaranteed under Article of the Constitution of India and Section 13 of J&K Public Safety Act. It would be apt to refer to the law laid down in State of Maharashtra and others versus Santosh Shanker Acharya, AIR, 2000 SC 2504. 2. Viewed thus, the petition is allowed and detention order No. DM/ DODA/PSA/2KX/63-70 dated 16.08.2010, passed by the District Magistrate, Doda respondent No. 2, directing detention of Shri Irshad Ahmad Malik son of Mohd Amin Malik resident of Bharath Tehsil & District Doda, quashed. 3. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DM/ DODA/PSA/2KX/63-70 dated 16.08.2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DM/DODA/PSA/2KX/63-70 dated 16.08.2010. 4. Detention record be returned to the counsel for respondents. 5. Disposed of.