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2011 DIGILAW 532 (JK)

Gh. Mohammad Ganai v. State of J&K and others

2011-09-29

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge in this petition is to order No. 44/DMS/PSA/2011 dated 11.06.2011, of District Magistrate, Shopian respondent No. 2 herein, whereby one Shri Gh. Mohammad Ganai son of Ab. Aziz Ganai resident of Heff Tehsil and District Shopian (herein after referred to as 'detenue') has been placed under preventive detention must succeed for following reasons: 2. 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 as well as detention order in question make mention of case FIR No. 55/2011 under section 4/ 5 Ex. Sub. Act, 7/ 27 A. Act at Police Station Zainapora, to have been registered against the detenue. The involvement of detenue in the aforementioned case appears to have heavily weighed with 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 HC Bashir Ahmad No. 27/SPN of Police Station Zainapora, 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 Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. 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. 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) Constitution of India 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) of the Constitution 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 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 his 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 'OGW' of 'LeT' outfit. 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 'OGW' of 'LeT' outfit. The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly affiliated. The words/expressions like 'LeT', 'CASO' and 'OGW' are too vague to make the detenue aware of the exact accusations leveled 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 detenue. The detenue is also alleged to have been arranging food, shelter and other logistic support, providing information about movement security forces and VIPs to the militants and delivering messages of militant commanders to the other militants. The grounds of detention as also detention record do not reveal that the identification of militants, to whom the logistic support and information regarding movement of security forces and VIPS was being allegedly provided/transmitted by the detenue, has been disclosed to detenue. 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 activities which are detrimental to the security of the State and public order. The detenue only after getting the said information would have been in a position to explain his stand and make an effort to convince the competent authority that his preventive detention was unwarranted. 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 vs. The State of Delhi and others, AIR 1953; Chaju Ram vs. State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather vs. State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi Vs. State of J&K and others, 2009 (I) SLJ 2009 219. 4. Reference in this regard may be made to Dr. Ram Krishan vs. The State of Delhi and others, AIR 1953; Chaju Ram vs. State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather vs. State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi Vs. 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 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), Constitution of India and Section 13 of J&K Public Safety Act. The right to make a representation necessarily implies that the detenue must be informed of his right to make a representation to the authority that has made the order of detention at the time when the detenue is served with the grounds of detention, so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation. 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 ; Mrs. Nutan J. Patel Vs. S.V. Prasad and another, SC 1995(4) Crimes, 767; and Kamleshkumar Ishwardas Patel Vs. Union of India and others, (1995) 4 SCC 51 . Viewed thus, the petition is allowed and detention order No. 44/DMS/PSA/2011 dated 11.06.2011, passed by the District Magistrate, Shopian respondent No. 2, directing detention of Shri Gh. Mohammad Ganai son of Ab. Aziz Ganai resident of Heff Tehsil and District Shopian, quashed. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 44/DMS/PSA/2011 dated 11.06.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. 44/DMS/PSA/2011 dated 11.06.2011. Detention record be returned to the counsel for respondents. Disposed of with connected CMP.