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2013 DIGILAW 672 (JK)

Irshad Ahmad Dar v. State

2013-11-21

BANSI LAL BHAT

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1. Through the medium of instant Habeas Corpus Petition, detenue -- Irshad Ahmad Dar seeks quashment of detention order NO.05 / DMA /PSA/ DET/2013 dated 20.06.2013 which has been slapped upon him by District Magistrate Anantnag invoking powers under Section 8 of the Jammu and Kashmir Public Safety Act as his activities were found to be prejudicial to the "security of the State" and "maintenance of public order". The detenue stands lodged in Central Jail Kote-Bhalwal, Jammu. 2. Respondents have filed objections resisting the petition on the ground that in view of the activities of the detenue, the impugned detention order was passed on application of mind and the required material was furnished to detenue for making an effective representation. 3. Learned counsel for petitioner contended that in the impugned order of detention, it is recorded that the District Magistrate was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the "security of the State" and "maintenance of public order", it was necessary to detain him under the provisions of the Jammu and Kashmir Public Safety Act, 1978. The grounds of detention are concluded as follows; "Therefore, it is clear that your activities are highly prejudicial to the security of the State and maintenance of public order and warrant immediate preventive measures to be taken against you." 4. Adverting to the Record, it appears that the District Magistrate is not certain whether the alleged activities of the detenue posed threat to the "security of the State" or to "maintenance of public order". This suggests non-application of mind while passing the order of detention. Learned counsel for petitioner has placed reliance upon the judgment of Hon'ble Apex Court rendered in "G.M. Shah v. State of J&K" reported in (1980) 1 SCC 132 : 2010 (6) JKJ SC-850. It reads; "As observed by Hidayatullah, J.(as he then was) in Dr. Ram Manohar -- Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. `Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. `Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detent has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh C. Arif Ali & Ors. (2) and Satya Brata Ghose v. Arif Ali & Ors.(3)." 5. Learned counsel for petitioner next contended that the material forming the basis for grounds of detention including the dossier and connected documents referred to in the order of detention have not been supplied to the detenue, who has been deprived of making an effective representation against the order of detention. Thus, it is contended, the right guaranteed under Article 22(5) of the Constitution of India stands infringed. 6. The grounds of detention give a narrative of the activities and previous history of the detenue. However, it was imperative for detaining authority to furnish copies of such documents to the detenue for making an effective representation. Non furnishing of copies of such documents to the detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same renders the order of detention as illegal. 7. Non furnishing of copies of such documents to the detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same renders the order of detention as illegal. 7. Article 22(3)(b) of the Constitution of India which carves out an exception to Article 21 of the Constitution of India guaranting right to liberty, authorizes the concerned authorities to pass orders in the nature of preventive detention but while passing such orders, authority concerned has to be alive to the mandate of Article 21 protecting personal liberty of a person. Such power is required to be exercised in a manner, which does not have the trappings of depriving a person of the liberty guaranteed by the Constitution of India. An exceptional case has to be carved out justifying preventive order. Procedural safeguards have to be observed. A detenue can claim prejudice, if procedural safeguards are not adhered to. He can claim that his liberty had been curtailed de hors the law. Law laid down by Hon'ble Apex Court in "Rekha v. State of Tamil Nadu and Anr." reported in (2011) 5 SCC 244 fortifies this view. 8. In view of the facts attending upon this case and the legal position discussed hereinabove, the impugned order of detention is held to be unsustainable. Same deserves to be quashed. 9. For the aforesaid reasons, impugned detention order dated 20.06.2013 is quashed and the detenue is ordered to be released from preventive custody forthwith unless required in connection with some other case. 10. Disposed of. Record be returned to the concerned.