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2011 DIGILAW 703 (JK)

Irshad Ahmed v. State of J. and K.

2011-12-15

HASNAIN MASSODI

body2011
ORDER Challenge to order No. DMK/PSA/41-47/2011 dated 14-5-2011, of District Magistrate, Kishtwar respondent No. 2 herein, whereby one Shri Irshad Ahmed son of Ghulam Mustaffa Akhoon resident of Village Lidri Pinjrari Dachhan Tehsil Marwah District Kishtwar (hereinafter referred to as (detenue) has been placed under preventive detention, must succeed for following reasons : 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 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. 2. In the instant case the detenue is alleged to be OGW of “HM” outfit. The words/expressions like “OGW” and “HM”, 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. In the instant case the detenue is alleged to have closed association with “Subash alias Wasif” and “Amir Kamal alias Akram”. The detenue was not provided the particulars of “Subash alias Wasif”and “Amir Kamal alias Akram” and the detenue thus has been prevented from explaining that the detenue had nothing to do with “Subash alias Wasif” and “Amir Kamal alias Akram”. The detenue was not provided the particulars of “Subash alias Wasif”and “Amir Kamal alias Akram” and the detenue thus has been prevented from explaining that the detenue had nothing to do with “Subash alias Wasif” and “Amir Kamal alias Akram”. 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 the detaining authority and other respondents that the allegations against the detenue were bereft of any basis. 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 the detaining authority. The detenue has been kept guessing about the facts and events that weighed with the detaining authority and prompted detaining authority 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 Bhardwaj v. The State of Delhi ( AIR 1953 SC 318 ); Chaju Ram v. State of J&K ( AIR 1971 SC 263 ); Mohd. Yousuf Rather v. State of J. & K. ( AIR 1979 SC 1925 ); and Syed Aasiya Indrabi v. State of J & K (2009 (1) SLJ 219). 3. The Constitutional and Statutory safeguards, guaranteed to a person detained under prevention 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. 242/2010 under Section 363/120-B, RPC, 13/18 ULA Act, Police Station Kishtwar, to have been registered against the detenue. In the instant case, grounds of detention as well as detention order in question make mention of case FIR No. 242/2010 under Section 363/120-B, RPC, 13/18 ULA Act, Police Station Kishtwar, 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 SI Rajeev Kumar of P/S Kishtwar, 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 case, 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). 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 the detenue can make an effort to convince Detaining Authority and thereafter 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, 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 v. District Magistrate ( AIR 1982 SC 1315 ); Sofia Ghulam Mohammad Bam v. State of Maharashtra ( AIR 1999 SC 3051 ); Union of India v. Ranu Bhandari (2008 Cri LJ 4567 : (AIR 2009 SC (Supp) 965); Syed Aasiya Indrabi v. State of Jammu and Kashmir (2009 (I) SLJ 219); and Tahir Haris v. State ( AIR 2009 SC 2184 ). 4. Viewed thus, the petition is allowed and detention order No. DMK/PSA/41-47/2011 dated 14-5-2011, passed by the District Magistrate, Kishtwar respondent No. 2 directing detention of Shri Irshad Ahmed son of Ghulam Mustaffa Akhoon resident of Village Lidri Pinjrari Dachhan Tehsil Marwah District Kishtwar, quashed. 5. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMK/PSA/41-47/2011 dated 14-5-2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMK/PSA/41-47/2011 dated 14-5-2011. Detention record be returned to the counsel for respondents. Disposed of. Petition allowed.