Research › Search › Judgment

J&K High Court · body

2011 DIGILAW 74 (JK)

Yasmeen Raja v. State of J&K & Ors.

2011-02-28

GH.HASNAIN MASSODI

body2011
1. Challenge in this petition is to order No.40/DMP/PSA/2010 dated 27th October 2010, of District Magistrate, Pulwama - respondent No.2 herein, whereby one Ms.Yasmeen Raja daughter of Ghulam Nabi Bhat resident of Tulbagh, New Colony, Tehsil Pampore District Pulwama (herein after referred to as "detenue") has been placed under preventive detention and her lodgment directed in Central Jail, Srinagar. 2. The preventive detention of the detenue is questioned on the grounds that the respondents while detaining the detenue have violated her Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act 1978. 3. The respondents have, in their Counter Affidavit, disputed the averments made in the petition and insisted that the activities of detenue were prejudicial to the security of the State and maintenance of public order. The detention order is said to have been approved by the State Advisory Board and also by Government vide order No.Home/PB-V/2918/2010 dated 22.12.2010. The learned Deputy Ad­vocate General has made available detention record to lend support to the case set up in the counter affidavit. 4. I have gone through the petition and counter affidavit as also detention record. I have heard learned counsel for the petitioner and learned Deputy Advo­cate General, appearing for respondents. 5. The Detention Order is liable to be quashed for the following reasons: - I) The detention order as also grounds of detention make mention of "dossier" received from Superintendent of Police Pulwama vide No.Pros/PSA/10/835-38 dated 29.07.2010, relied upon by the Detaining Authority while making the 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 - Ali Mohd, HC No.24/AWT P/S Pampore, 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.1 14/2010 under section 147,148,149,341,332,336,427 RPC; FIR No. 126/2010 under section 147,148,149,353,336,427 RPC; and FIR No.136/2010 under section 147,148,149,332,336,307,427,353 RPC, P/S Pampore, to have been registered against the detenue. The involvement of detenue in the aforementioned case(s) appears to have heavily weighed with detaining authority while making detention order. The grounds of detention make reference to case - FIR no.1 14/2010 under section 147,148,149,341,332,336,427 RPC; FIR No. 126/2010 under section 147,148,149,353,336,427 RPC; and FIR No.136/2010 under section 147,148,149,332,336,307,427,353 RPC, P/S Pampore, to have been registered against the detenue. The involvement of detenue in the aforementioned case(s) appears to have heavily weighed with detaining authority while making detention order. The record does not indicate that copies of aforementioned First Information Report(s), statement(s) recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case, were ever supplied to detenue. It is pertinent to point out that the respondent No.2 in grounds of detention, after detailing the background, in which aforesaid case was registered against detenue, proceeds to opine "Therefore, in order to prevent you from indulging into the activities detrimental to the peace and tranquility, it is necessary to detain you.....". The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents in their counter affidavit have not controverted the plea that the said material was not furnished to detenue. The detention record made available by learned Deputy Advocate General reveals that none of the documents referred to in the detention order was ever supplied to detenue. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of her Constitutional and Statutory rights guaranteed vinder 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 such material available, that the detenue can make an effort to convince detaining authority and thereafter Government, that their apprehensions 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 her 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 her 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). II) 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/her 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 her 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 her detention. The object is to enable detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding her activities are grossly misplaced and her 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 her detention. In the instant case the detenue is alleged to be responsible for "indulging in stone pelting", and instigating the "youth" to create law and order problem. The detenue is also alleged to be participating in almost "every stone pelting incident". In the instant case the detenue is alleged to be responsible for "indulging in stone pelting", and instigating the "youth" to create law and order problem. The detenue is also alleged to be participating in almost "every stone pelting incident". The detenue is not furnished with the particulars of "youth", who are stated to be instigated by detenue for indulging in stone pelting. The detenue is again alleged to be responsible for instigating the youth to resort to pelting stones on "Public/private establishment, traffic plying on the roaejs" and causing "damage to the public property". The detenue is not informed with sufficient clarity the exact allegations leveled and furnished the particulars of youth, who are stated to be responsible for indulging in stone pelting, nor the particulars of public/private establishments or public property, which are alleged to be damaged by youth having been instigated by detenue. The counter affidavit as also detention record, do not reveal that the detenue is furnished the necessary details of occurrence(s) attributed to her. Moreover, grounds of detention do not contain details of "vehicles" or their exact numbers, which are alleged to be damaged by the youth, having been instigated by detenue. The grounds of detention allege that the detenue is involved in "distributing money among youth" in lieu of stone pelting and sloganeering. The grounds of detention do not identify the persons/youth, to whom the money has been distributed. The detenue, in absence of such details, could not be expected to have been in a position to give her side of story and persuade the detaining authority that the allegations against detenue were bereft of any basis. To sum up, 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 her 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 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 detaining authority. 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 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 her detention are taken to have been violated. Reference in this regard maybe made to Dr.Ram Krishan v. The State of Delhi and others, AIR, 1953,; Chaju Ram v. State of J&K, AIR 1971SC 263; Mohd Yousuf Rather v. State of J&K, AIR 1979 SC1925 : 2010 (6) JKJ 840 [SC]; and Syed Aasiya Indrabi v. State of J&K and others, 2009 (I) SLJ 2009 219 : 2009 (3) JKJ 707 [HC]. Ill) The order of detention was made on 27th October 2010 and it is stated to have been passed so as to detain the detenue with a view to preventing her from acting in any manner prejudicial to the maintenance of public order. The detention order is based on dossier received from Superintendent of Police Pulwama vide No.Pros/PSA/10/835-38 dated 29.07.2010, and after two months' delay detention order passed on 27.10.2010. There was thus delay and the delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of detaining authority recited in the order of detention. It would be reasonable to assume that if the detaining authority was really and genuinely satisfied after proper application of mind to the material(s) before him that it was necessary to detain the detenue with a view to preventing detenue from acting in a prejudicial manner, the detaining authority would have acted with greater promptitude in making the order of detention. The detaining authority may have a reasonable explanation for the delay, sufficient to dispel the suspicion that its satisfaction was not genuine. But in case in hand, no explanation is forthcoming either in detention order or in counter affidavit as to why the order of detention was made as late as 27th October 2010 when the dossier was received on 29th July 2010. But in case in hand, no explanation is forthcoming either in detention order or in counter affidavit as to why the order of detention was made as late as 27th October 2010 when the dossier was received on 29th July 2010. It is the obligation of the State and the detaining authority to place all the relevant facts before the Court and if there is any delay in making the order of detention, the State must give reasons explaining the delay. There being no explanation for the delay, it becomes clear that the detaining authority has not applied its mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the detenue with a view to prevent her from acting in manner prejudicial to the security of the State. The condition precedent for the making of the order of detention was, therefore, not satisfied and consequently, the order of detention deserves to be quashed. Reference in this regard may be made to law laid down in Sk. Serajul v. State of West Bengal, ( AIR 1975 SC 1517 ) and Ahamed Mohaidecn Zabbar v. State of Tamil Nadu and others ( AIR 1999 SC 2141 ). 6. Viewed thus, the petition is allowed and detention order No.40/DMP/PSA/2010 dated 27th October 2010, passed by the District Magistrate, Pulwama - respondent No. 2, directing detention of Ms.Yasmeen Raja daughter of Ghulam Nabi Bhat resident of Tulbagh, New Colony, Tehsil Pampore District Pulwama, quashed. 7. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No.40/DMP/PSA/2010 dated 27th October 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 40/DMP/PSA/2010 dated 27th October 2010. 8. Detention record be returned to the counsel for respondents. Disposed of.