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2011 DIGILAW 570 (JK)

Mashook Ahmad War v. State Of J&K

2011-10-24

Hasnain Massodi

body2011
1. Challenge to order No. 11-DMK/PSA of 2011 dated 14.07.2011, of District Magistrate, Kupwara-respondent No. 2 herein, whereby one Shri Mashook Ahmad War son of Abdul Gani War resident of Chanjmulla, Tehsil Handwara, District Kupwara (herein after referred to as "detenue") has been placed under preventive detention, must succeed for following reasons:- 1. Preventive detention as held in A.K. Gopalan v. State of Madras (1950 SCR 88) and reiterated in Rekha v. State of Tamil Nadu (AIR 2011 SCW 2262) is by nature repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra), while emphasising that Article 22(3)(b) Constitution of India is to be read as an exception to Article 21, Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later, observed: "Since however, Article 22 (3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Panel Code and other penal statues) can deal with the situation, recourse to the preventive detention law will be illegal". The Court further observed: "It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion'', The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital." The Court, making reference to law laid down in Kamleshwar Ishwar Prasad Patel v. Union of India and Others (1995) 2 SCC 51 (para 49), observed: "the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue". The Court quoted with approval following observation made in Ratan Singh v. State of Punjab and others, 1981 (4) SCC, emphasising the need to ensure that the Constitutional and Statutory safeguards available to a detenue were followed in letter and spirit observed; "But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and, liberty are to have any meaning in our democratic set-up, it is essential that at-least those safeguards are not denied to the detenu's " Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and another (1987) 2 SCC 22 ) in following words: "The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard". 2. The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to. 3. Let us, now shift focus to the present case to see whether the procedural safeguards have been meticulously and strictly followed while ordering preventive detention of petitioner. 4. The detenue appears to have been initially put under preventive detention vide order No. 27-DMK/PSA/ of 2010 dated 24.11.2010. The detention order was questioned in HCP No. 391/2010. The challenge succeeded and the detention order was quashed vide judgment dated 13th May 2011. The detenue, though required to be released, was slapped with another detention order 11-DMK/PSA of 2011 dated 14.07.2011, as pleaded in paras 02 and 03 of the petition. 5. The detention order was questioned in HCP No. 391/2010. The challenge succeeded and the detention order was quashed vide judgment dated 13th May 2011. The detenue, though required to be released, was slapped with another detention order 11-DMK/PSA of 2011 dated 14.07.2011, as pleaded in paras 02 and 03 of the petition. 5. The grounds of detention that lay foundation for the detention order in question are in substance same as were the grounds of detention pressed into service while making the earlier detention order dated 24.11.2010. The detaining authority in grounds of detention intriguingly has relied upon the grounds taken in the earlier detention order. 6. It is well settled law that when a detention order is quashed by the Court, the grounds of the order so quashed should not be taken into consideration, either as whole or in part, even alongwith fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order. It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order. The Detaining Authority therefore cannot consider the grounds that were relied upon to pass the earlier detention order or activities that were detailed in such grounds. The position may be different where the earlier detention order is revoked due to technical reasons. In such a situation the grounds of detention may be used to make fresh detention order after removal of technical impediment or loopholes. However, no such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. A reference in this regard may be made to law laid down in, Chhagan Bhai, Baghwan Bhai Qahar v. N.L Kumar ( AIR 1989 SC 1234 ); Jabbarkhan Azadkhan v. State of Gujarat; Masrat Alam Bhat v. State & Others, (SLJ 2003 (II) 570, 2010 (3) JKJ 282 [HC]); Mst. Zahida v. State & Others (SLJ 2008 (1) 245, 2008 (2) JKJ 406 [HC]); Masrat Alam Bhat v. State (SLJ 2008 (II) 689, 2009 (2) JKJ 158 [HC]). 7. 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. 7. 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 order makes mention of material record such as "dossier and other connecting documents" relied upon by the Detaining Authority while making detention order. The detention order also makes reference to a communication No. Pross/Dossier/2011/1391-94 dated 20th June 2011, received from Superintendent of Police, Handwara. The counter affidavit reveals that none of the documents referred to in the detention order was ever supplied to detenue. The grounds of detention make reference to case - FIR No. 245/2010 under section 7/25 A. Act and FIR No. 54/2006 under section 7/25 Arms Act, Police Station Handwara, claimed to have been registered against the detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with detaining authority while making detention order. The counter affidavit 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 the grounds of detention, after detailing background, in which aforesaid cases were registered against detenue, proceeds to opine "In view of the above facts, it is evident that your activities are detrimental to the peace of the State". 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), 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 detenue. It is only after the detenue has all said material available that he can make an effort to convince the Detaining Authority and thereafter the Government that their apprehension as regards activities of detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, he cannot be in a position to make an effective representation against his detention order. If the detenue is not supplied material, on which detention order is based, he 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 v. District Magistrate ( AIR 1982 SC 1315 ); Sofia Ghulam Mohammad Bam v. State of Maharashtra and Others ( AIR 1999 SC 3051 ); Union of India v. Ranu Bhandari (2008, Cr. L. J. 4567); Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219, 2009 (3) JKJ 707 [HC]); and Tahir Haris v. State and Others (AIR 2009 Supreme Court 2184). 8. Article 22(5), 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 security of the State or maintenance of public order. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenue 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 the 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 hard core Over Ground Worker of "L.e.T." militant outfit, having its headquarters at "PAK/POK". The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly associated. The words/ expressions, like "L.e.T", "PAK/POK", are too vague to make the detenue aware of the exact accusation levelled against him. The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly associated. The words/ expressions, like "L.e.T", "PAK/POK", 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 reference to the links with terrorists of "L.e.T. militant outfit" is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be associated. It `was incumbent upon 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 is alleged to have managed "Sim Cards" and provided "food and shelter" to militants. The detenue has not been given details/numbers of Sim Cards, details of person(s) from whom he acquired/ managed the Sim Cards as also particulars of militants to whom the detenue is alleged to have provided Sim Cards and food and shelter. 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 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. 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 v. The State of Delhi and others, AIR, 1953,; Chaju Ram v. State of J&K, AIR 1971 SC 263 : 2010 (6) JKJ SC-731; Mohd Yousuf Rather v. State of J&K, AIR 1979 SC 1925 : 2010 (6) JKJ SC-840; and Syed Aasiya Indrabi v. State of J&K and others, 2009 (I) SLJ 2009 219, 2009 (3) JKJ 707 [HC]. 9. 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) of the Constitution of India and Section 13 of J&K Public Safety Act. It would be apt to make a reference in this regard to the law laid down in State of Maharashtra and others v. Santosh Shanker Acharya, AIR, 2000 SC 2504. Viewed thus, the petition is allowed and detention order No. 11-DMK/PSA of 2011 dated 14.07.2011, passed by the District Magistrate, Kupwara - respondent No. 2, directing detention of Shri Mashook Ahmad War son of Abdul Gani War resident of Chanjmulla, Tehsil Handwara, District Kupwara, quashed. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 11-DMK/PSA of 2011 dated 14.07.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 11-DMK/PSA of 2011 dated 14.07.2011.