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2012 DIGILAW 734 (JK)

Tanvir Ahmad Mir v. State

2012-11-28

MUZAFFAR HUSSAIN ATTAR

body2012
1. The orders of detention, passed in all these three writ petitions, have been passed by respondent No.2, District Magistrate, Kulgam. The text and tenor of all the three impugned detention orders is similar and even grounds of detention in all the three cases are same. 2. Learned counsel for the petitioners raised identical grounds of challenge in all the petitions, which has necessitated disposing of the all these cases together by this order. In the grounds of detention, in all the three cases, following allegations are leveled against the detenues : "1.a/ To collect information about movement of security forces so as to make safe passage of militants from one place to another. b/ To identify the places for hiding of militants and for dumping of the Arms/ammunition. c/ To motivate more and more youth of the area to work for militants as over ground workers. d/ To paste the posters of the outfit whereby the elected Sarpanchs & Panchs were threatened to resign or to fact consequences. e/ To arrange safe accommodation and food for the militants. 2.......... 3. You were supplied with the posters by the militants and you along with your other associates pasted/displayed posters in the area with the intention to pressurize the Sarpanchs & Panchs to resign. This act spread terror and threat among the general masses of the area. These posters were found pasted in different villages of the area for which case FIR NO. 92/2012 U/S 10 Criminal Law Amendment Act 505-B RPC stands registered in Police Station Yaripora Kulgam. 4. On 27-07-2012, the police intercepted you along with your other associates. During questioning, you disclosed that are working as Over Ground Worker for militants and facilitates them by all logistic means. You disclosed your involvement in pasting posters in different villages of the area to spread terror and threat among people. One RPG Grenade and some threatening posters were recovered by the police from you. Two RPG rounds and some threatening posters were recovered by the police from you and you were formally arrested in the instant case." 3. The petitioner (detenue) in HCP No. 113/2012, namely Tanveer Ahmad Mir s/o Ghulam Mohammad Mir, R/O Khajipora Zanipora, Shopian, has been ordered to be detained by the District Magistrate, Kulgam vide his order bearing No.13/DMK/PSA/2012 dated 09-08-2012. 4. The petitioner (detenue) in HCP No. 113/2012, namely Tanveer Ahmad Mir s/o Ghulam Mohammad Mir, R/O Khajipora Zanipora, Shopian, has been ordered to be detained by the District Magistrate, Kulgam vide his order bearing No.13/DMK/PSA/2012 dated 09-08-2012. 4. The petitioner (detenue) in HCP No. 117/2012, namely Muzaffar Ahmad Rather S/O Mohammad Yousuf, R/O Hangal Buch Yaripora, Kulgam, has been ordered to be detained by the District Magistrate, Kulgam vide his order bearing No.12/DMK/PSA/2012 dated 09-08-2012. 5. The petitioner (detenue) in HCP No. 115/2012, namely Rayees Ahmad Itoo S/O Mohammad Yousuf, R/O Hangal Bush Yaripora, Kulgam, has been ordered to be detained by the District Magistrate, Kulgam vide his order bearing No.16/DMK/PSA/2012 dated 09-08-2012. 6. Learned counsel for the petitioners submitted that the District Magistrate, Kulgam, in the orders of detention, has provided that "on the basis of grounds of detention placed before him by the Superintendent of Police, Kulgam, he was satisfied to detain the detenues with a view to prevent them from acting in any manner prejudicial to the security of the State", and further submitted that the grounds of detention have been supplied to the detaining authority by the Superintendent of Police concerned which demonstrates that the detaining authority has not applied his own mind to the case but has acted on the grounds of detention prepared by the Superintendent of Police concerned. Learned counsel also submitted that the material, on the basis of which, detention of the detenues has been ordered, has not been supplied to them, which has prevented them from making effective representations against their respective detention orders. Learned counsel further submitted that the allegations leveled in the grounds of detention are vague and a reasonable person cannot comprehend as to what is being conveyed by the detaining authority. Learned counsel referred to and relied upon the following judgements : 1. AIR 1981 SC 1751 ; 2. 2011(I) SLJ 255 ; 2010 (4) JKJ [HC] 657 3. 2011 (II) SLJ 913 ; 2011 (2) JKJ [HC] 590 4. 2011 (II) SLJ 754 ; 2011 (2) JKJ [HC] 871 5. 2009 (II) SLJ 849 ; 2009 (3) JKJ [HC] 638 6. 2010 (II) SLJ 873. 2010 (2) JKJ [HC] 909 Learned counsel for the petitioners, accordingly, prayed for declaring the detention of the detenues to be illegal. 7. 2011 (II) SLJ 913 ; 2011 (2) JKJ [HC] 590 4. 2011 (II) SLJ 754 ; 2011 (2) JKJ [HC] 871 5. 2009 (II) SLJ 849 ; 2009 (3) JKJ [HC] 638 6. 2010 (II) SLJ 873. 2010 (2) JKJ [HC] 909 Learned counsel for the petitioners, accordingly, prayed for declaring the detention of the detenues to be illegal. 7. Learned counsel for the respondents submitted that the detention of the detenues is justified in the facts and circumstances of the cases. He also submitted that there is complete compliance of the provisions of Jammu and Kashmir Public Safety Act, 1978 (for short Act of 1978). In a bid to satisfy the Court that taking the detenues into preventive custody was necessitated, in the facts and circumstances of their respective cases, learned counsel also produced detention record of the detenues. 8. It is said and it is also proved by experience of hundreds of years that rule of law is always better than the rule of individual. In a democratic society, governed by rule of law, a duty is cast on the elected representatives of the people to put in place all such measures, which will ensure and guarantee peace in the society. It is the peace which allows human beings to develop morally, academically and materially. Preventive Detention laws, in a civilized society, are frowned upon by all those who believe in the dignity of liberty. The Preventive Detention law, making of which has been authorized by the Constitution itself, is a necessary evil. In order to maintain and preserve the order in the society and further in order to ensure that security of the State is not breached, in rare cases, recourse can be had to Preventive Detention Laws. 9. Panchayats constitute democratic institutions at gross root level. The people at village level elect their representatives with the benign hope that their immediate problems will be redressed at the earliest and in a hassle free manner at the hands of Sarpanchs and Panchs. These gross root institutions of democracy must be strengthened and they must flourish as they not only reflect the will of the people at the village level but also instill sense of confidence in the electorate, who exercise their franchise at such gross root level. These gross root institutions of democracy must be strengthened and they must flourish as they not only reflect the will of the people at the village level but also instill sense of confidence in the electorate, who exercise their franchise at such gross root level. Any kind of damage caused to these institutions may have serious consequences and repercussions on the welfare of people of such areas where the Panchayats are put in place. An assault on these gross root level democratic institutions has to be viewed seriously. 10. Be that as it may, it is the duty of the Executive to ensure safety of the elected Sarpanchs and Panchs and create such atmosphere, where these elected representatives of the people, at gross root level, do not feel threatened. 11. This Court is to enforce the Constitution and other laws. Article 21 of the Constitution of India, which recognizes one of the basic human rights of an individual, provides that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law. Article 22 of the Constitution of India, though authorize for taking a person into preventive custody, but inbuilt safeguards have been made by the Constitution makers in the said article itself so as to ensure that liberty, which is a cherished right of an individual, is not taken away at the drop of the hat and without complying with the mandatory requirements of the said article and the procedure established for depriving a person of his liberty by taking him into preventive detention. 12. The District Magistrate, detaining authority, in the detention order, has stated that he has entered into satisfaction on the basis of the "grounds of detention placed before him by the Superintendent of Police", which otherwise would mean that a duty, which was cast on him, has been performed by an authority which is Greek to the Act of 1978. In order to take a person into preventive custody, the District Magistrate has to look into the record and material made available to him and then satisfy himself about the necessity of ordering for detention of a person. For arriving at such conclusion, the detaining authority has to formulate the grounds of detention. In order to take a person into preventive custody, the District Magistrate has to look into the record and material made available to him and then satisfy himself about the necessity of ordering for detention of a person. For arriving at such conclusion, the detaining authority has to formulate the grounds of detention. In the cases on hand, the grounds of detention have been formulated by the Superintendent of Police concerned and the detaining authority has acted on them without applying his own mind. The detaining authority, which is a statutory authority, has failed to comply with the mandate contained in Articles 21 & 22 of the Constitution of India and provisions of the Act, 1978. The detention orders, in all these cases, thus, stand vitiated for non application of mind. 13. In the record of the cases, produced by learned counsel for the respondents, a receipt has been placed which shows that the detenues have been handed over copies of detention orders, two leaves comprising of grounds of detention and one letter. Some other material, though has been handed over to the Superintendent of Jail/Assistant Superintendent of Jail, has not been handed over by the said authority to the detenues. In view of the law laid down by the Hon'ble Supreme Court in case titled Wasi-Ud-Din Ahmed, petitioner v. the District Magistrate, Aligarh, U.P and ors, respondents reported in AIR 1981 SC page 2166, relevant paragraph whereof is reproduced herein below, the grounds of detention are incomplete without supplying complete material, upon which the detaining authority has relied upon: "13. This court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperative indicated in Art. 22(5) are twofold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what is means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents. The detenu, therefore, has right to be furnished with the grounds of detention along with the documents relied upon. 14. The right to make a representation implies what is means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents. The detenu, therefore, has right to be furnished with the grounds of detention along with the documents relied upon. 14. As discussed above, the detenues' in these cases, have been prevented from making effective representations against their respective detention orders, which has violated their constitutional guarantee contained in article 22(5) of the Constitution of India. Thus, in view of the law laid down by the Hon'ble Supreme Court supra, these petitions are allowed in the following manner : "By issuance of writ of Certorari, detention orders bearing NOs. 13/DMK/PSA/2012 dated 09-08-2012, 12/DMK/PSA/2012 dated 09-08-2012 & 16/DMK/PSA/2012 dated 09-08-2012, passed by District Magistrate Kulgam, are quashed with further direction to release the person of Tanveer Ahmad Mir S/O Ghulam Mohammad Mir, R/O Khajipora Zanipora, Shopian, Muzaffar Ahmad Rather S/O Mohammad Yousuf, R/O Hangal Buch Yaripora, Kulgam and Rayees Ahmad Itoo S/O Mohammad Yousuf, R/O Hangal Buch Yaripora, Kulgam, from the preventive custody. 15. Writ petitions are disposed of along with connected Cr.MPs. Record be returned to learned counsel for the respondents.