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2011 DIGILAW 537 (JK)

Noordin Badana 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 to order No. 09/DMB/PSA/2011 dated 30.05.2011, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Noordin Badana son of Chari Mohammad Badana resident of Chatergul Kangan at present Nishat Srinagar Tehsil Kangan District Ganderbal (herein after referred to as 'detenue') has been placed under preventive detention must succeed for the following reasons: - The Detaining Authority 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 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. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The endorsement on the reverse of the detention order made by the Executing Officer Gh. Hassan SI No. 8631/NGO P/S Uri, 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 grounds of detention make reference to case FIR No. 89/2010 under section 18 Unlawful Act at P/S Uri, to have been registered against detenue. It appears that the said case has weighed with detaining authority at the time detention order in question was made. The grounds of detention make reference to case FIR No. 89/2010 under section 18 Unlawful Act at P/S Uri, to have been registered against detenue. It appears that the said case has weighed with detaining authority at the time detention order in question was made. Copies of First Information Report, statements recorded under section 161 Cr. P.C. and other material collected in connection with investigation of aforesaid case, have not been furnished to detenue. 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 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), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to him. It is only after the detenue has all said material available, that he can make an effort to convince Detaining Authority and thereafter Government, that their apprehensions as regards activities of detenue are baseless and misplaced. If the detenue is not supplied the 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. 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. 4. In the instant case the detenue is stated to be brother of Mohammad Younis Badana, who was allegedly associated with 'Al-Braq' militant group and became 'LTM' of said outfit and later on gunned down by 'HM' outfit. The detenue is not informed with sufficient clarity the organizations with which his brother is allegedly affiliated. The words/expressions like 'LTM', 'HM', 'POK', and 'ANE's', are too vague to make the detenue aware of the exact accusation(s) 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 detenue. The detenue is alleged to have secretly worked for ANE's and helped them in money transaction and information of vital installation of Indian army to anti-national elements. The detenue has not been given the particulars of militants, associates or accomplices, to whom he is alleged to have transmitted information of vital installation. The detenue is alleged to have secretly worked for ANE's and helped them in money transaction and information of vital installation of Indian army to anti-national elements. The detenue has not been given the particulars of militants, associates or accomplices, to whom he is alleged to have transmitted information of vital installation. 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 detaining authority that the allegations against the detenue were bereft of any basis. To sum up, the grounds of detention that constitute basis for 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 detaining authority. The detenue has been kept guessing about the facts and events that weighed with the Detaining Authority and prompted him 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 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 Versus State of J&K and others, SLJ 2009 (I) 219. 5. Viewed thus, the petition is allowed and detention order No. 09/ DMB/PSA/2011 dated 30.05.2011, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Noordin Badana son of Chari Mohammad Badana resident of Chatergul Kangan at present Nishat Srinagar Tehsil Kangan District Ganderbal, quashed. 6. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 09/DMB/PSA/2011 dated 30.05.2011. 6. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 09/DMB/PSA/2011 dated 30.05.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. 09/DMB/PSA/2011 dated 30.05.2011. 7. Detention record is returned to the counsel for respondents. 8. Disposed of.