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2012 DIGILAW 138 (JK)

Fayaz Ahmad Mir v. State & Ors

2012-03-30

HASNAIN MASSODI

body2012
Challenge to order No.41/DMB/PSA/2011 dated 02.11.2011 of District Magistrate, Baramulla respondent No.2 herein, whereby one Shri Fayaz Ahmad Mir son of Mohammad Jamal Mir resident of Warapora Sopore Tehsil Sopore District Baramulla (herein after referred to as detenue ) has been placed under preventive detention, must succeed for following reasons: 1. The Detaining Authority intriguingly has recorded subjective satisfaction on the basis of grounds of detention placed before him. The Detaining Authority may get inputs from different agencies, including Superintendent of Police of the concerned District. The responsibility to formulate grounds of detention, however, rests with the Detaining Authority. It is Detaining Authority, who has to go through the reports and other inputs received by him from concerned agency and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive detention. The detention order, for the said reasons, exhibits total non-application of mind by the Detaining Authority. The detention order is liable to be quashed on this ground alone. 2. 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 a 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) 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. 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 present case the reasons spelt out in the grounds of detention include that the detenue remained active in violent agitation by threatening transporters and fruit growers and extorted money from them. The detenue has not been furnished the particulars of transporters and fruit growers, who are alleged to have been threatened by detenue and from whom money is alleged to have been extorted by the detenue. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear to enable a man of common prudence to explain his stand muchless make an effective representation. The detenue is not informed with clarity about his alleged activities that make out a ground for his preventive detention. 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 detaining authority that the allegations levelled 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 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 detenue. 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 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 Vs The State of Delhi and others ( AIR 1953 SC 318 ); Chaju Ram Vs State of J&K ( AIR 1971 SC 263 ); Mohd Yousuf Rather Vs State of J&K ( AIR 1979 SC 1925 ); and Syed Aasiya Indrabi Vs State of J&K and others (SLJ 2009 (I) 2009 219). 3. 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 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 Mushtaq Ahmad ASI No.1580/S of P/S Bomaie, Sopore, 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.67/2003 under section 307 RPC, 5 Exp. Sub Act, 7/27 A.Act of Police Station Pampore (Pulwama); and FIR No.24/2011 under section 7/25 A.Act of Polce Station Bomia, to have been registered against detenue. It appears that the said cases have weighed with Detaining Authority, at the time detention order in question was made. Copies of First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases has not been furnished to detenue. It appears that the said cases have weighed with Detaining Authority, at the time detention order in question was made. Copies of First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases has not been furnished to detenue. It is pertinent to point out that the Detaining Authority in grounds of detention, after detailing the background, in which aforesaid cases were registered against detenue, proceeds to opine It is manifest from factual position as at pre-pares (pre- paras) that your activities are highly pre-judicial to the security of the State. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention record reveals that none of the documents referred to in the detention order was 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 said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension 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. 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, Cr. L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris versus State and Others (AIR 2009 Supreme Court 2184). L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris versus State and Others (AIR 2009 Supreme Court 2184). Viewed thus, the petition is allowed and detention order No.41/DMB/PSA/2011 dated 02.11.2011, passed by the District Magistrate, Baramulla respondent No.2, directing detention of Shri Fayaz Ahmad Mir son of Mohammad Jamal Mir resident of Warapora Sopore Tehsil Sopore District Baramulla, quashed. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No.41/DMB/PSA/2011 dated 02.11.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No.41/DMB/PSA/2011 dated 02.11.2011. Detention record be returned to the counsel for respondents. Disposed of.