Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 441 (JK)

Masood Ahmad Hakeem 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. Det/PSA/DMA/10/27 dated 05.01.2011, of District Magistrate, Anantnag respondent No. 2 herein, whereby one Shri Masood Ahmad Hakeem son of Mohammad Shafi Hakeem resident of New Qazi Bagh Tehsil & District Anantnag (herein after referred to as 'detenue') has been placed under preventive detention, must succeed for following reasons: The grounds of detention make reference to case - FIR No. 299/2010 under section 148, 149, 436, 345 RPC and FIR No. 331/2010 under section 148, 149, 336, 427, 307, 435, 188 RPC 3/4 PPP of Damages Act 1985 of P/S Anantnag, to have been registered against detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with detaining authority while making detention order. 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 case was registered against detenue, proceeds to opine 'Now therefore it is manifest from the above that your activities are highly prejudicial to the security of the State'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention record reveals that none of the documents referred to in the detention order was supplied to the detenue. 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 (S.L.J. 2009 (I) 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 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. 3. In the instant case the detenue along with other miscreants is alleged to have 'instigated/ provoked the general public to take out processions, hold demonstrations and go on indefinite strike and to destroy public property'. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. 3. In the instant case the detenue along with other miscreants is alleged to have 'instigated/ provoked the general public to take out processions, hold demonstrations and go on indefinite strike and to destroy public property'. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of associates/miscreants, who are stated to be responsible for indulging in stone pelting, taking out processions, holdings demonstrations and destroying public property nor the particulars of public property alleged to have been destroyed by detenue and other miscreants. 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 alleged to have been creating confusion and law and order situation in District Anantnag for which he is using some 'Gundas'. The word/expression like 'Gundas', is 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 meaning of expression 'Gundas' or identity of such elements, it is aware of, must be necessarily known to detenue. 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. 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. 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 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 in effect 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. Reference in this regard may be made to the law laid down in State of Maharashtra and others versus Santosh Shanker Acharya ( AIR 2000 SC 2504 ). 5. Viewed thus, the petition is allowed and detention order No. Det/PSA/ DMA/10/27 dated 05.01.2011, passed by the District Magistrate, Anantnag respondent No. 2, directing detention of Shri Masood Ahmad Hakeem son of Mohammad Shafi Hakeem resident of New Qazi Bagh Tehsil & District Anantnag, quashed. 6. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. Det/PSA/ DMA/10/27 dated 05.01.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. Det/PSA/DMA/10/27 dated 05.01.2011. 7. Detention record be returned to the counsel for respondents. 8. Disposed of.