Abdul Ahad Rather vs State of Jammu & Kashmir and others

Hasnain Massodi, Judge

Challenge to order No. 43-DMK/PSA of 2010 dated 26.02.2011, of District Magistrate, Kupwara 'respondent No. 2 herein, whereby one

Shri Abdul Ahad Rather son of Mansoor Ahmad Rather resident of Takpora Lolab Tehsil and District Kupwara (herein after referred to as

'detenue'), has been placed under preventive detention, must succeed for the following reasons:

I) The detaining authority has ordered detention of detenue 'for a maximum period'. The expression used by the respondent No. 2 as regards the

period of detention is unknown to law. The detention order is to stay in force for a period of 12 days in terms of Section 8, J&K Public Safety

Act, 1978 and is to lose its force with efflux of time unless it is approved by the Government in terms of Section 8(4) of the Act. The respondent

No. 2, by rushing to the conclusion as regards period of detention before the detention order was to pass through the necessary filtration

envisioned in Section 13, 14 and 17 has violated the Constitutional and Statutory rights of the detenue. The expression 'maximum period' must

have dissuaded and discouraged the detenue from making any representation as the detaining authority had closed his mind and by using the

expression made it loud and clear that he was not amenable to explanation, if any, given by the detenue.

II) The Constitutional and Statutory safeguards, guaranteed to a person detained under preventive detention law, are meaningless unless and until

the detenue is made aware of and furnished all the material that weighed with the Detaining Authority while making detention order. The grounds of

detention make reference to case ' FIR No. 34/2003 u/s 307, 511, 419, 120-B RPC and 7/25 A. Act of P/S Lalpora; FIR No. 83/2003 u/s 302,

307 RPC, 7/27 A. Act P/S Kupwara; and FIR No. 60/2002 u/s 4/5 Exp.Sub. Act, 307 RPC at Police Station Sogam, to have been registered

against detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with the detaining authority while making

detention order. The endorsement, on the reverse of detention order made by the Executing Officer ' ASI Gh. Hassan No. 55/KP of DPL Sogam,

at the time of execution of detention order, does not make a reference to the documents in question and does not record that such documents were

supplied to detenue at the time of execution of detention order or immediately thereafter. The record does not indicate that copies of

aforementioned First Information Reports, statements recorded u/s 161 Cr.P.C. and other material collected in connection with investigation of

aforesaid case were ever supplied to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the case.

The respondents, in their counter affidavit, have not controverted the plea that the said material was not furnished to detenue. The detention record

reveals that none of the documents referred to in the detention order was supplied to detenue. It needs no emphasis that the detenue cannot be

expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and

Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the

detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and

thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied

material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The

failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal

and unsustainable. While holding so, I draw support from Dhannajoy Dass versus District Magistrate (AIR 1982 SC 1315); Sofia Ghulam

Mohammad Bam versus State of Maharashtra and Others (AIR 1999 SC 3051); Union of India versus Ranu Bhandari (2008, Cr. L. J. 4567);

Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris versus State and Others (AIR 2009

Supreme Court 2184).

III) 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 detenue, on whom preventive detention order is slapped, is

held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be

prejudicial to maintenance of public order or security of State. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory

for Detaining Authority to provide detenue an earliest opportunity of making an effective and meaningful representation against his detention. The

object is to enable detenue to convince Detaining Authority and 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 detenue meaningful, it is necessary

that detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order.

In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention.

In the instant case the detenue is alleged to have provided every input to the militants with regard to the movement of security forces. The militants,

to whom the information was being allegedly transmitted by the detenue, are not identified nor their identity disclosed. The detenue is also alleged

to have provided food and shelter to the militants in carrying out the subversive activities. It was incumbent upon the detaining authority to give

adequate information regarding identity of militants, with whom the detenue was alleged to have associated to indulge in subversive activities. The

detenue is also alleged to have been providing transport facility to the militants to move from one place to another. The detenue has not been

furnished the details of vehicles, in which the detenue is alleged to have helped the militants to move from one place to another. The detenue 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 detenue 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 detenue

to make a representation against his detention are taken to have been violated. Reference in this regard may be made to Dr.Ram Krishan Versus

The State of Delhi and others, AIR, 1953,; Chaju Ram Versus State of J&K, AIR 1971 SC 263; Mohd Yousuf Rather Versus State of J&K,

AIR 1979 SC 1925; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 2009 219.

IV) The Detaining Authority ' respondent No. 2 did not inform the detenue that the detenue, independent of his right to file representation against

his detention to the Government, has also a right to submit a representation to the Detaining Authority till the detention was considered by the

Government and the Government accorded its approval to the detention. The respondent No. 2 has thus violated Constitutional and Statutory

rights of the detenue, guaranteed under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act. It would be apt to

make a reference in this regard to the law laid down in State of Maharashtra and others versus Santosh Shanker Acharya, AIR, 2000 SC 2504.

Viewed thus, the petition is allowed and detention order No. 43-DMK/PSA of 2010 dated 26.02.2011, passed by the District Magistrate,

Kupwara ' respondent No. 2, directing detention of Shri Abdul Ahad Rather son of Mansoor Ahmad Rather resident of Takpora Lolab Tehsil and

District Kupwara, quashed.

The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. 43-DMK/PSA

of 2010 dated 26.02.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No.

43-DMK/PSA of 2010 dated 26.02.2011.

Detention record be returned to the counsel for respondents.

Disposed of