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2011 DIGILAW 83 (JK)

Mustafa Ali Makroo 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. 45/DMP/PSA/10 dated 20th November 2010, of District Magistrate, Pulwama respondent No. 2 herein, whereby one Shri Mustafa Ali Makroo son of Ali Mohd. Makroo resident of Jawbrara New Colony Tehsil Awantipora District Pulwama (herein after referred to as 'detenue') has been placed under preventive detention and his lodgment directed in District Jail, Kathua. 2. The petitioner's case is that the detenue was, without any cause or justification, apprehended and detention order No. 45/DMP/ PSA/10 dated 20th November 2010, slapped on him. The respondents, it is insisted, have ignored to provide detention order and material, relied upon by Detaining Authority to order detention and thus deprived detenue of his Constitutional and Statutory right to represent against his detention. Grounds of Detention are stated to be vague, non-existent and unfounded. 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 state. The detention order is said to have been approved by the State Advisory Board and also by Government vide order No. Home/PB-V/44/2011 dated 05.01.2011. 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 Awantipora vide No. Pros/PSA/10/957-60 dated 09.09.2010, 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 the detenue. The endorsement on the reverse of the detention order made by the Executing Officer ' HC Gh. Ahmad 11D/Avt, P/S Awantipora, 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. Ahmad 11D/Avt, P/S Awantipora, 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. 137/2010 under section 148,149,336, 332,427 RPC, P/S Awantipora, to have been registered against the detenue. The involvement of the detenue in aforementioned case appears to have heavily weighed with detaining authority while making detention order. The 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. 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 ' your persistent involvement in the activities is prejudicial to maintenance of public order, peace and tranquility and constant threat to the maintenance of law and order.' 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 the 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) 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 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 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 ). II) 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 maintenance of public order or security of 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 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. In the instant case detenue is alleged to be "affiliated with APHC (G)". The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly affiliated. The word/ expression like "APHC (G)", is too vague to make the detenue aware of the exact accusation(s) leveled against him. In the instant case detenue is alleged to be "affiliated with APHC (G)". The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly affiliated. The word/ expression like "APHC (G)", is too vague to make the detenue aware of the exact accusation(s) leveled 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 activities of "APHC (G)" is rendered meaningless in view of non-description of the organization with which the detenue is alleged to be affiliated. The detenue alongwith his 'accomplices' are alleged to be responsible for indulging in stone pelting "upon the Police/CRPF personnel which resulted in injuries to many Jawans". The detenue is not informed with sufficient clarity the exact allegations leveled and furnished the particulars of 'accomplices', who are stated to be responsible for indulging in stone pelting, nor the particulars of police and security personnel, who are alleged to have been attacked and injured by the detenue by pelting stones on them. The counter affidavit as also detention record, do not reveal that the detenue is furnished the necessary details of occurrence(s) attributed to him and his unnamed and unidentified accomplices. Moreover, grounds of detention do not contain details of "Government and Private Property" or their exact locality, which are alleged to be damaged by the protest demonstrations lead by detenue. The detenue, in absence of such details, could not be expected to have been in a position to give his side of the story and persuade the respondent no. 2 and other respondents that the allegations against the 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 his stand in reply to the grounds of detention detailed by the respondent No. 2. The detenue has been kept guessing about the facts and events that weighed with the respondent No. 2 and prompted the respondent No. 2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the detenue. The detenue has been kept guessing about the facts and events that weighed with the respondent No. 2 and prompted the respondent No. 2 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 Versus 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. III) The respondent No. 2 in the concluding para of the grounds of detention claims to be satisfied that the activities of the detenue are "prejudicial to maintenance of public order, peace and tranquility and a constant threat to the maintenance of law and order." However, the respondent No. 2 in his counter affidavit has averred that the detenue was placed under preventive detention as in the opinion of respondent no. 2 the activities of the detenue were "prejudicial to the security of the state." There is thus conflict between the detention order, impugned in the petition, and the counter affidavit sworn by the detaining authority. The conflict is indicative of non-application of mind by detaining authority. The detaining authority appears to be not sure about the exact ground that persuaded it to make the detention order. It is pertinent to point out that the detaining authority can slap prevention detention if the activities of the person proposed to be detained under the Act are prejudicial to the security of the state or public order. Once the detaining authority has not been able to spell out the exact ground in the detention order that led to detention of detenue, non-application on the part of detaining authority is writ large on the detention order. Once the detaining authority has not been able to spell out the exact ground in the detention order that led to detention of detenue, non-application on the part of detaining authority is writ large on the detention order. The detention order merits to be quashed on this ground alone. 6. Viewed thus, the petition is allowed and detention order No. 45/ DMP/PSA/10 dated 20th November 2010, passed by the District Magistrate, Pulwama respondent No. 2, directing detention of Shri Mustafa Ali Makroo son of Ali Mohd. Makroo resident of Jawbrara New Colony Tehsil Awantipora 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. 45/ DMP/PSA/10 dated 20th November 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 45/DMP/PSA/10 dated 20th November 2010. 8. Detention record be returned to the counsel for respondents. 9. Disposed of.