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2016 DIGILAW 614 (JK)

Khuram Parvaiz Sheikh v. State

2016-11-25

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. 1. Order of detention bearing No. DMS/PSA/46/2016 dated 21st September, 2016, passed by District Magistrate, Srinagar, Kashmir, is called in question in this petition, inter alia, on the ground that respondent No. 2 has not furnished copy of letter dated 19th September, 2016, addressed to respondent No. 3 to the detenue; Respondent No. 2 has not informed the detenue about his right of making representation against his detention; Respondent No. 2 has not provided copies of F.I.Rs., referred to and relied upon by him, while passing order of detention; Respondent No. 2 has not referred to the arrest or initiation of proceedings u/s. 107/151 Cr.P.C. against the detenue. Neither the order passed by the learned Magistrate nor by the learned Principal Session Judge, Srinagar, have been referred to or considered; Respondent No. 2, in the grounds of detention, has stated that the detenue is involved in F.I.R 72/2016, 74/2016, 78/2016 & 39/2016, registered at Police Station, Ram Munshi Bagh and Police Station, Zadibal, respectively, thus, parallel proceedings could not be initiated by him and detenue could not be detained under the provisions of J&K Public Safety Act, 1978 (for short Act of 1978); the detenue has not filed any bail Application for seeking his bail in the aforesaid F.I.Rs, thus, there was no likelihood of his release on bail; Respondent No. 2 has passed the order of detention on the recommendations of Respondent No. 3, in as much as, he has substituted the word "you" for the word "subject"; the Respondent No. 3 has falsely stated that the detenue is involved in F.I.Rs 72/2016, 74/2016 and 39/2016, without satisfying as to who was instigated by the detenue and when and where; the grounds of detention are vague, irrelevant, ambiguous and non existent and also lack in material particulars; Respondent No. 2 has observed in breach the safeguards enshrined in Articles 21 & 22(5) of the Constitution of India and the provisions of the Act of 1978. The respondent-District Magistrate, in his Reply Affidavit, has stated that the activities of the detenue being highly prejudicial to the maintenance of public order, he (District Magistrate) had no option but to order for detention of the detenue by invoking the provisions of the Act of 1978. The respondent-District Magistrate, in his Reply Affidavit, has stated that the activities of the detenue being highly prejudicial to the maintenance of public order, he (District Magistrate) had no option but to order for detention of the detenue by invoking the provisions of the Act of 1978. He has also pleaded that he had no knowledge about the arrest of detenue by Police Station, Kothi Bagh and the remand granted by the Executive Magistrate (South), Srinagar. He has also denied having knowledge about the averments made in paragraphs 3 & 4 of the writ petition. However, in respect of averments made in paragraphs 5 & 6 of the writ petition, the District Magistrate has stated that the police concerned framed the dossier on the basis of information/record etc., which, as per his understanding, shows that the detenue is an anti social element known for his anti national activities, which are prejudicial to the maintenance of public order. It is also pleaded that the police, when it found that the detenue cannot be kept away from acting and/or indulging in the activities detrimental to the maintenance of public order, reported the matter to him vide communication dated 19th September, 2016, along with dossier, supported by relevant record and recommendation for detaining the detenue under the provisions of the Act of 1978. It is further pleaded at page (3) of the Reply Affidavit that the detenue, by his anti social and anti national activities, has achieved top position in the separatist camp under a hidden cover by being a Human Rights Activist, which, as per pleading of the learned District Magistrate, he is not. It is also pleaded that the detenue has been deeply involved in the ongoing unrest in the valley while instigating/motivating the elements to resort to the activities, which are highly "prejudicial to the security of the State/maintenance of public order." It is also pleaded that after framing the grounds of detention and after applying mind to the facts and circumstances of the case, the detention order was issued. It is also pleaded at page (4) of the Reply Affidavit that the detenue was supplied "relevant documents" including copy of detention warrant and grounds of detention. It is further pleaded that the provisions of the Act of 1978 have been followed faithfully by the authorities. 2. Learned counsel for the parties argued in tune with their respective pleadings. 3. It is also pleaded at page (4) of the Reply Affidavit that the detenue was supplied "relevant documents" including copy of detention warrant and grounds of detention. It is further pleaded that the provisions of the Act of 1978 have been followed faithfully by the authorities. 2. Learned counsel for the parties argued in tune with their respective pleadings. 3. Mr. Imroz, learned counsel for the petitioner referred to and relied upon the judgment reported in 2005(supp) JKJ 79 (HC) in case titled Muskeen Ali v. State of J&K and others and prayed for allowing of the writ petition. 4. Mr. Dar, learned AAG, in support of his contentions, referred to and relied upon judgments reported in Mohd. Yousuf Khan v. State & Ors., 2011(2) JKJ 213 (HC) & Farooq Ahmad Lone v. State & Anr , 2011 (2) JKJ 218 (HC) and prayed for dismissal of the writ petition. 5. In a democratic society like ours, governed by rule of law, it becomes duty of the State to maintain peace and order in the society. It becomes duty of the people also to follow laws of the land to ensure that peace is maintained. Peace in the society, in turn, guarantees moral, intellectual and material development of a human being. 6. Personal liberty of an individual is his birth right guaranteed by article 21 of the Constitution of India. This article prescribes that no person shall be deprived of his life and personal liberty without following the procedure established by law. Preventive Detention Law is one such procedure, in terms of which a person can be deprived of his personal liberty. A society, which has catapulted itself to the highest position of democratic values and principles, may not accept the law like the Act of 1978. However, it is deemed appropriate not to dilate on this issue, in as much as, neither the Act of 1978 nor any of its provisions is in challenge in this petition. 7. It is to be restated that when a person is deprived of his personal liberty by having resort to Preventive Detention Laws, he is not to be brought before any Court of law nor the veracity of the grounds of detention is to be adjudged in the Court of law. 7. It is to be restated that when a person is deprived of his personal liberty by having resort to Preventive Detention Laws, he is not to be brought before any Court of law nor the veracity of the grounds of detention is to be adjudged in the Court of law. It is in this backdrop that very important safeguards have been prescribed in terms of article 22 of the Constitution of India and the Act of 1978 to a person, who is deprived of his personal liberty by the act of the State. 8. It is, in the aforementioned circumstances, that a duty is cast on Courts to ensure complete and faithful compliance of the provisions of the Constitution and provisions of the Act of 1978. 9. Though it is the duty of the State and its authorities to maintain peace in the society but it is equally their responsibility to ensure that laws, which they invoke to achieve such purpose, are followed and complied with honestly. It is also one of the fundamental duty of paramount importance for the Courts of law to ensure that laws of the land are implemented in right earnest. 10. In the aforesaid backdrop, reverting to the facts of this case, what emerges is that the detention of the detenue is not only illegal but the Detaining Authority has abused its powers in ordering his detention. Perusal of the grounds of detention would reveal that the detenue has been, allegedly, found involved in (4) F.I. Rs, in which it is shown that he has committed offences u/s. 307, 147, 158, 336, 149 & 332 RPC. Perusal of the said F.I. Rs, which have been placed on record and are also available in the record produced by learned counsel for the respondents, would show that in none of these F.I. Rs, the detenue has been named as accused. Nothing is brought to the notice of the Court, either in the grounds of detention or in the Reply Affidavit, that in the investigation of these F.I. Rs, involvement of the detenue surfaced as an accused. In absence of any such material having been brought to the notice of the Court, at this stage, it has to be presumed that the detenue is not involved in any of the above said F.I. Rs. 11. In absence of any such material having been brought to the notice of the Court, at this stage, it has to be presumed that the detenue is not involved in any of the above said F.I. Rs. 11. It is not in dispute that the detenue was, initially, arrested by invoking the provisions of section 151 Cr.P.C. and was remanded to judicial custody by initiating proceedings u/s. 107 Cr.P.C. Perusal of the documents, available on writ record, would show that Police Station, Ram Munshi Bagh, has filed a complaint u/s. 107 & 151 Cr.P.C. before the Executive Magistrate, South Zone, Srinagar, against one Shri Khuram Parvaiz S/O Manzoor Ahmad R/O Sonwar, Srinagar. In the complaint, it is stated that the said person was instigating the people, who were coming out from the mosque at Syed Sahib, Sonwar, Srinagar to raise slogans. It is not specified in the complaint as to what slogans the detenue was, allegedly, asking the people to raise. It was the duty of the complainant to mention in the complaint that what type of slogans the detenue wanted the people to raise. Merely raising slogans, without specifying the nature of such slogans, would not become basis for initiation of action in terms of section 107 Cr.P.C. Similarly, the police witnesses, whose statements have been recorded on 16th September, 2016, in support of the aforesaid complaint, have made parrot like statements by stating that one Khuram Parvaiz S/O Manzoor Ahmad R/O Sonwar, Srinagar, was instigating people to raise slogans. On the basis of allegations contained in the complaint and the statements of the police personnel to support the complaint, prima facie, even though, it appears that no offence was committed by the detenue, yet in essence, these allegations are made against some other person and not the detenue, as his (detenue's) parentage is Pervaiz Ahmad Sheikh and not Manzoor Ahmad. Even residential address of the detenue is different. 12. Assuming for the argument sake that the proceedings u/s. 107 Cr.P.C. were required to be initiated against the detenue, then the Executive Magistrate had to follow the provisions of law, which, in view of the order of learned Principal Sessions Judge, Srinagar, the said authority has not followed. 13. Even residential address of the detenue is different. 12. Assuming for the argument sake that the proceedings u/s. 107 Cr.P.C. were required to be initiated against the detenue, then the Executive Magistrate had to follow the provisions of law, which, in view of the order of learned Principal Sessions Judge, Srinagar, the said authority has not followed. 13. In order to ensure maintenance of peace, if the circumstances so warranted, the Executive Magistrate could initiate proceedings u/s. 107 Cr.P.C. and after following the provisions of law, ask the detenue to execute Bond for maintaining peace and there would have been no requirement for invoking the provisions of the Act of 1978. 14. Be that as it may, in the order of detention, the Detaining Authority has stated: "Whereas, Senior Superintendent of Police, Srinagar vide No. Lgl/Det/2016/5576-79 dated 19-09-2016 has produced material record, such as dossier and other connecting documents in respect of Shri Khuram Parvaiz S/O Sheikh Parvaiz Ahmad R/O House No. 1, Gupkar, Srinagar." 15. At paragraph (3) of the detention order, the Detaining Authority has stated that the detenue was ordered to be detained for preventing him from acting in any manner prejudicial to the maintenance of public order. At page (3) of the Reply Affidavit, as already stated, the same Detaining Authority has stated that the activities of the detenue were highly prejudicial to the security of the State/maintenance of public order. 16. The Detaining Authority, in the order of detention, has referred to the material record, such as dossier and "other connecting documents". What were those other connecting documents, nothing has been spelt out either in the detention order or in the Reply Affidavit. Obviously, these documents have not been supplied to the detenue. Even the record, produced by learned counsel for the respondents, does not show which record has been provided to the detenue and no receipt of the detenue has been placed on the official record to indicate as to which documents were supplied to the detenue. The detenue has, thus, admittedly, not been provided all the documents, upon which the Detaining Authority has relied while ordering for his detention. The detenue, in these circumstances, has been deprived of the opportunity of making an effective representation against his detention in terms of article 22(5) of the Constitution of India. Breach of this constitutional safeguard alone is sufficient to invalidate the impugned order of detention. The detenue, in these circumstances, has been deprived of the opportunity of making an effective representation against his detention in terms of article 22(5) of the Constitution of India. Breach of this constitutional safeguard alone is sufficient to invalidate the impugned order of detention. Hon'ble the Supreme Court, while Dealing with such violation, 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 has ruled as under: "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." 17. The very fact that the Detaining Authority, in the Reply Affidavit, has stated that the activities of the detenue were highly prejudicial to the security of the State/maintenance of public order, without elucidating as to which activities were prejudicial to the security of the State and which were against maintenance of public order, would show that he (Detaining Authority) has not been sure whether the activities of the detenue were prejudicial to the security of the State or maintenance of public order and has, thus, arbitrarily, ordered for detention of the detenue. It also shows that the detention order suffers from lack of application of mind on the part of the Detaining Authority. 18. Hon'ble the Supreme Court, while Dealing with similar situation, in case titled –G.M. Shah v. State of Jammu and Kashmir, reported in (1980) 1 Supreme Court Cases 132, in paragraph (9) of the judgment, ruled as under: ".. As observed by Hidayatullah, J. (as he then was) in Dr. 18. Hon'ble the Supreme Court, while Dealing with similar situation, in case titled –G.M. Shah v. State of Jammu and Kashmir, reported in (1980) 1 Supreme Court Cases 132, in paragraph (9) of the judgment, ruled as under: ".. As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manhar Lohia v. State of Bihar one has to imagine three concentric circles, in order to understand the meaning and import of the above expression. '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 no 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 detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali and Satya Brata Ghose v. Arif Ali." 19. The judgments, referred to and relied upon by learned counsel for the respondents, proceed on their own facts. None of the like facts available in those cases are available in the case on hand. 20. For the above stated reasons, this writ petition is allowed in the following manner: "By issuance of writ of Certiorari, order of detention bearing No. DMS6/PSA/46/2016 dated Rectification of date vide Case No. CMP 02/2016, dt. 29.11.2016. [21st] September, 2016, passed by Respondent No. 2-District Magistrate, Srinagar, Kashmir, is quashed with further direction to the respondents to release the person of Shri Khuram Parvaiz Sheikh S/O Pervaiz Ahmad Sheikh R/O House No. 1, Gupkar, Srinagar, forthwith from preventive custody." Disposed of along with Cr.MPs.