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2017 DIGILAW 571 (JK)

Aijaz Ahmad Buhroo v. State of J&K

2017-08-08

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. In pursuance to order No. 233/DMB/PSA/2017 dated 18.01.2017, passed by District Magistrate, Baramulla, Aijaz Ahmad Buhroo (hereinafter referred to as the detenue), has been taken into preventive custody, so has been lodged in Central Jail, Kotebhulwal. By now detenue is in preventive custody for more than six months. 2. Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned, the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base for the grounds of detention and the consequent order of detention. Further added that the copy of order of detention has not been provided to the detenue thereby his right has been violated. 3. Nothing has been brought on record to suggest that the material forming basis for the grounds of detention, has been supplied to the detenue therefore, infringement of right guaranteed under Article 22(5) of the Constitution. The Hon’ble Apex Court in the judgment rendered in the case of Sophia Gulam Mohd. Bham vs. State of Maharashtra and Others, AIR 1999 SC 3051 , 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.” 4. In para 28 of the judgment captioned Thahira Haris vs. Government of Karnataka and Others, AIR 2009 SC 2184 , Hon’ble Apex Court has held as under: “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. 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.” 5. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. Personal liberty protected under Article 21 of the Constitution of India is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this connection, it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon’ble Judges of the Hon’ble Apex Court in case captioned Rekha vs. State of Tamil Nadu and Another, (2011) 5 SCC 244 : “37. As observed in Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha vide SCC para 5: (SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. As observed in Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha vide SCC para 5: (SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu 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.” As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee vs. McGrath: (US p. 179) “...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law.” 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society’s assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience.” 6. In view of the facts of the present case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the order of detention impugned is unsustainable, as such, quashed. Detenue is directed to be released from the preventive detention forthwith provided he is not required in connection with any other case. 7. Disposed of as above. 8. Detention records, as produced, be returned back to learned counsel for the respondents.