Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 472 (JK)

Ubaid Tariq Antoo v. State of J. & K.

2013-08-22

TASHI RABSTAN

body2013
ORDER 1. One Shri Ubaid Tariq Antoo alias Billa alias Faris son of Tariq Ahmad Antoo alias Mitha resident of Kraltang Sopore District Baramula (hereinafter referred to as detenu has approached this Court seeking quashment of Order No.01/DMB/PSA/2013 dated 2nd May 2013, passed by District Magistrate, Baramulla (for short detaining authority) whereby detenu was ordered to be detained under Section 8 of Jammu and Kashmir Public Safety Act, 1978, on various grounds. 2. The Detaining Authority and the State Government were allowed several opportunities to respond to the motion. They have, however, opted not to file any response to the petition. 3. Detention record, however, has been made available by learned Deputy Advocate General. 4. Heard learned counsel for the parties at length and considered their submissions and have gone through the record. 5. Preventive detention as held in A.K. Gopalan v. State of Madras ( 1950 SCR 88 : ( AIR 1950 SC 27 : 1950 Cri LJ 1383) and reiterated in Rekha v. State of Tamil Nadu (2011 AIR SCW 2262: (AIR 2011 SC (Supp) 856) is by its very nature repugnant to democratic ideals and an anathema to the rule of law. The Supreme Court in Rekhas case (supra), while emphasising that Article 22(3)(b), Constitution of India, is to be read as an exception to Article 21, Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later, observed:- Since however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Panel Code and other penal statutes) can deal with the situation, recourse to the preventive detention law will be illegal. 6. The Court further observed:- It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as jurisdiction of suspicion. The Detaining Authority passes the order of detention on subjective satisfaction. Preventive detention is often described as jurisdiction of suspicion. The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. 7. In Kamleshwar Ishwar Das Patel v. Union of India (1995) 4 SCC 51 ) the Supreme Court observed:- The history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenu. 8. Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha (1987) 2 SCC 22 : ( AIR 1987 SC 725 : 1987 Cri LJ 700) in following words : The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard. 9. The baseline, that emerges from the above over view of case law on the subject of preventive detention is that whenever preventive detention is called in question in a Court of law, the first and fore most task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to. 10. The Constitutional and Statutory safeguards granteed to a person detained under preventive detention law are meanigless unless and until the detenu is made aware of and furnished all the material that weighed with the detaining authority while making detention order. In the present case the Detention order makes mention of the material record such as dossier and other connecting documents relied upon by the Detaining Authority while making detention order. In the present case the Detention order makes mention of the material record such as dossier and other connecting documents relied upon by the Detaining Authority while making detention order. The detention order makes mention of a communication No. PROSS/PSA/2013/5362 dated 1-4-2013, received from Superintendent of Police, Sopore. 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 detenu. The grounds of detention make reference to case FIR No. 315/2010 under Sections 147, 427, RPC P/S Sopore; FIR No. 470/2010 under Sections 307, 148, 336, 427, RPC P/S Sopore; FIR No. 75/2011 under Section 307, RPC, 7/27 I.A. Act P/S Sopore; FIR No. 78/2011 under Section 307, RPC 7/27 Arms Act P/S Sopore; FIR No. 250/2012 under Section 7/25 Arms Act P/S Sopore, claimed to have been registered against the detenu. The involvement of detenu in the said cases appears to have weighed with Detaining Authority while making detention order. The detention record does not indicate that copies of above First Information Reports, statements recorded under Section 161, Cr. P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenu. The material, mentioned above thus assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to detenu. It is only after the detenu has all said material available that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehension concerning activities of detenu are baseless and misplaced. If the detenu is not supplied material, on which the detention order is based, he cannot be in a position to make an effective representation against his detention order. The failure on the part of the Detaining Authority to supply the material relied at the time of making detention order to the detenu, renders detention order illegal and unsustainable. While holding so, reference may be made to law laid down in Thahira Haris etc. etc. The failure on the part of the Detaining Authority to supply the material relied at the time of making detention order to the detenu, renders detention order illegal and unsustainable. While holding so, reference may be made to law laid down in Thahira Haris etc. etc. v. Government of Karnataka ( AIR 2009 SC 2184 : (2009 Cri LJ 2451); Union of India v. Ranu Bhandari (2008 Cri LJ 4567): (AIR 2009 SC (Supp) 965); Dhannajoy Dass v. District Magistrate ( AIR 1982 SC 1315 ): (1982 Cri LJ 1779), Sofia Ghulam Mohammad Bam v. State of Maharashtra ( AIR 1999 SC 3051 : (1999 Cri LJ 4064); and Syed Aasiya Indrabi v. State of J&K (2009 (I) SLJ 219). 11. 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 detenu, on whom preventive detention order is slapped, is held in custody without a formal charge and trial. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or maintenance of public order. Article 22(5) of the Constitution and Section 13 of the Act, this make it obligatory for Detaining Authority to provide detenu earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu 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 detenu meaningful, it is necessary that detenu be informed with all possible clarity what is/are apprehended activities that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenu cannot be expected to make a representation against his detention. The grounds of detention reveal that the detenu is alleged to have been providing logistic support to active militants operating and also providing them regular information regarding movement of police and security forces. The detenu has not been given particulars of militants to whom the detenu is alleged to have been providing logistic support and regular information as regards movement of police and security forces. The detenu has not been given particulars of militants to whom the detenu is alleged to have been providing logistic support and regular information as regards movement of police and security forces. It was incumbent upon the detaining authority to give adequate information regarding identity of militants, with whom the detenu was alleged to have associated to indulge in subversive activities. The detenu 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 detenu 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 detenu to make a representation against his detention are taken to have been violated. Reference in this regard may be made to State of Maharashtra v. Santosh Shankar Acharya ( AIR 2000 SC 2504 ): (2000 Cri LJ 3939); Chaju Ram v. State of J & K ( AIR 1971 SC 263 : (1971 Cri LJ 281); Dr. Ram Krishan v. The State of Delhi ( AIR 1953 SC 318 : (1953 Cri LJ 1241); Mohd Yousuf Rather v. State of J&K ( AIR 1979 SC 1925 ); and Ghulam Nabi Shah v. State of J&K (2005 (1) SLJ 251). 12. For the afore-stated facts, reasons and the law, the petition is allowed and detention order No.01/DMB/PSA/2013 dated 2nd May 2013, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Shri Ubaid Tariq Antoo alias Billa alias Faris son of Tariq Ahmad Antoo alias Mitha resident of Kraltang Sopore District Baramula, quashed. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenu under order No.1/DMB/PSA/2013 dated 2nd May 2013. Resultantly, the respondents are directed to release the detenu from preventive detention, order vide order No.01/DMB/PSA/2013 dated 2nd May, 2013. 13. Disposed of. 14. Detention record by returned to the counsel for respondents. Petition allowed.