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2016 DIGILAW 659 (JK)

Syed Asiya Andrabi v. State

2016-12-15

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Detention of the detenue pursuant to Order No. DMS/PSA/55/2016, dated 05.10.2016, for preventing her in acting in any manner prejudicial to the maintenance of public order, is assailed by medium of this petition on various grounds, i.e. : (a) Material forming base for formulation of grounds of detention has not been supplied to the detenue, as such, has been deprived of her right to make effective representation which is a clear infringement of Article 22(5) of the Constitution of India, (b) Linked with this ground is another important ground i.e. the grounds of detention are alleged to be vague, irrelevant, indefinite and unreal. Learned counsel for the petitioner during the course of arguments submitted that the detenue is suffering from various ailments, which submission could be taken care of by directing the authorities concerned to provide her proper medical aid and facility whatever required. 2. It has been brought to the notice of the Court that son of the detenue, namely, Faktoo Ahmad Bin Qasim has been admitted in the hospital where he has undergone surgery. His father is serving out the period of sentence in Central Jail whereas mother is in preventive custody, at least presence of the mother (detenue) is of paramount importance to her son. Highlighting the human angle, learned counsel prayed for release of the detenue. In support of his submission has produced photocopy of the medical record maintained by Sher-i-Kashmir Institute of Medical Sciences, Srinagar, so as to substantiate position of son of the detenue having undergone surgery on 12.12.2016. 3. Learned AAG prayed for dismissal of the petition by projecting that the petition is premature because the detenue had a remedy of representation which she has not availed but can still avail the same. This argument has been repelled by the learned counsel for the petitioner by stating that the representation is not an alternative remedy and right of representation does not disentitled the detenue from invocation of writ jurisdiction. Supporting this submission relied on the judgment rendered by this Court reported in [Mian Ab. Qayoom v. State of J&K & Ors. This argument has been repelled by the learned counsel for the petitioner by stating that the representation is not an alternative remedy and right of representation does not disentitled the detenue from invocation of writ jurisdiction. Supporting this submission relied on the judgment rendered by this Court reported in [Mian Ab. Qayoom v. State of J&K & Ors. 2010 (4) JKJ 922 [HC] : JKJ Soft JKJ/25590] 2010 (II) SLJ 926, wherein it has been held that "the right to challenge the detention order is an independent right which accrues to a detained person and is not circumscribed by any statutory provision providing for a safeguard". In short it has been held that the representation is not an alternate remedy. 4. In the grounds of detention as formulated by District Magistrate, a narrative to the effect that the detenue has an active role in devising the programmes with secessionist elements which have created large scale violence in the ongoing unrest, same have instigated the disgruntled elements on ground for implementing such programmes. In addition thereto, by giving highly proactive speeches these elements are being motivated to indulge in illegal activities aimed at creating large scale disturbance in the Valley affecting maintenance of public order. It is also mentioned that the detenue has been exploiting the present situation by instigating the disgruntled elements to support the programmes given by the secessionist elements. It is also added that the detenue is gathering unlawful assemblies and delivering highly objectionable and inflammatory speeches persuading general public to join secessionism and resort to unlawful activities. It is also mentioned that the detenue has been found working in close association with secessionist elements and a special role has been assigned to her to ensure participation of women folk in carrying out illegal programmes of secessionist organizations as well as her own illegal programmes. Finally, it has been opined that the activities of the detenue are highly prejudicial to the maintenance of public order warranting immediate preventive measures so as to save the society from violence, strikes, economic adversity and social indiscipline. 5. How District Magistrate has formulated the grounds of detention is not clear from the records as produced. No case is shown to have been registered against the detenue. Simply SSP has prepared a dossier based on which grounds of detention appear to have been copied. 5. How District Magistrate has formulated the grounds of detention is not clear from the records as produced. No case is shown to have been registered against the detenue. Simply SSP has prepared a dossier based on which grounds of detention appear to have been copied. Without any supporting material dossier has been prepared by SSP. District Magistrate perhaps too has not asked for the material based on which dossier has been prepared, which in turn suggests that the whole process has been hoodwinked for detention of the detenue. 6. Preventive laws have the element of depriving a person of his/her liberty. Liberty is guaranteed under Article 21 of the Constitution of India. Sometimes prevention may be imperative which is an exception but for invoking exceptional clause, care has to be taken for safeguarding the rights which are guaranteed under the Constitution of India. 7. From the perusal of records it is quite clear that no material, if any, which formed base for the grounds of detention and the consequent order of detention has been supplied to the detenue, as a result whereof a valid constitutional right of effective representation against the detention has been violated. 8. In catena of judgments Hon'ble Apex Court has ruled that the non-supply of material forming base for the grounds of detention renders the order of detention as illegal. In this connection it shall be quite advantageous to quote following paras from the judgment captioned Thahira Haris etc. v. Govt. of Karnataka & Ors. reported in AIR 2009 SC 2184 : "27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention. 29. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention. 29. On proper construction of clause (5) of Article 22 read with Section 3(3) of COFEPOSA Act, it is imperative for valid continuance of detention that the detenue must be supplied all documents, statements and other materials relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenue and the detenue was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution". It is also quite apt to quote following portion from para 14 of the judgment of Hon'ble Apex Court captioned Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors. ( AIR 1999 SC 3051 ), Hon'ble Apex Court has held as under : "The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language." It shall also be advantageous to quote following portion from para 8 of the judgment of the Hon'ble Apex Court captioned Powanammal v. State of T.N. & Anr. reported in 1999 (2) SCC 413 : "....The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 9. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 9. The grounds of detention are vague unsupported by any material. Routine allegations without any supporting material can't form base for order of detention. 10. Keeping in view the facts, circumstances and the law, the only inescapable conclusion is that the order of detention is unsustainable, as such, quashed. Detenue shall be released forthwith. 11. Detention records as produced by learned AAG be returned to him. Disposed of as above.