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2011 DIGILAW 82 (JK)

Javid Ahmad Kundoo v. State of J&K and others

2011-02-28

HASNAIN MASSODI

body2011
JUDGMENT Hon'ble Mr. Justice Hasnain Massodi, Judge 1. Challenge in this petition is to order No. DMS/PSA/78/2010 dated 25th September 2010,of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri Javid Ahmad Kundooson of Habibullah Kundooresident of Manz Mohalla, Anchar, Soura, District Srinagar(herein after referred to as 'detenue') has been placed under preventive detention and his lodgment directed in Kote-Bhalwal Jail, Jammu. 2. The preventive detention of the detenue is questioned on the grounds that the respondents while detaining the detenue have violated his 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. The detention order is said to have been approved by State Advisory Board and also by the Government vide No. Home/PB-V/2592/2010 dated 13.11.2010. 4. Heard, perused and considered. 5. The detention order is liable to be quashed for the following reasons: - 1. 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. 80/2010; and FIR No. 87/2010, registered at Police Station Sour against the detenue. It appears that the said case(s) have weighed with detaining authority at the time detention order in question was made. Copies of First Information Report(s), statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s) has not been furnished to detenue. It is pertinent to point out that the respondent No. 2 in grounds of detention, after detailing the background, in which aforesaid cases were registered against detenue, proceeds to opine "Therefore, it is clear that your activities are highly prejudicial to the maintenance of public order". The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention order or grounds of detention do not reveal that copies of FIRs or material collected during investigation of the aforementioned case(s) was at the time of execution of detention warrant or immediately thereafter made available to the detenue to enable him to exercise his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978. The Constitutional and Statutory Safeguards are meaningless 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 the Detaining Authority and thereafter the Government that their apprehensions as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the detention order is based, the detenue would not be in a position to make an effective representation against his detention. The failure on the part of Detaining Authority to supply the material relied at the time of making detention order, renders detention illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression in 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 2009 (I) S.L.J 219; and Tahir Haris versus State and Others AIR 2009 SC 2184 . 2. 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 a 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 the public order. 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 security of the State or maintenance of the 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 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. 6. In the instant case the detenue alongwith his 'associates' is alleged to be responsible for indulging in stone pelting and forcing shopkeepers to close their business establishment and also attack police and 'security forces'. The detenue is not informed with sufficient clarity the exact allegations leveled and furnished the particulars of 'associates', who are stated to be responsible for indulging in stone pelting, nor the particulars of security personnel, who are alleged to have been attacked by the detenue and his associates by pelting stones on them. The counter affidavit does not reveal that the detenue is furnished the details of occurrence(s) attributed to detenue and his unnamed and unidentified associates. 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. 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 rights of the detenue to make a representation against his detention are to be taken to have been violated. Reference in this regard may be made to Dr. Ram Krishanversus The State of Delhi and others, AIR, 1953; Chaju Ram Versus State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather versus State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi versus State of J&K and others, 2009 (I) SLJ 219. 7. Viewed thus, the petition is allowed and detention order No. DMS/PSA/78/2010 dated 25th September 2010, passed by the District Magistrate, Srinagar respondent No. 2, directing detention of Shri Javid Ahmad Kundoo son of Habibullah Kundoo resident of Manz Mohalla, Anchar, Soura, District Srinagar, quashed. 8. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. DMS/PSA/78/2010 dated 25th September 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No. DMS/PSA/78/2010 dated 25th September 2010. 9. Disposed of.