Abdul Rashid Chopan vs State of Jammu & Kashmir and others

Honble Mr. Justice Hasnain Massodi, Judge

Challenge to order No. 28/DMK/PSA/10 dated 23rd November 2010, of District Magistrate, Kulgam respondent No. 2 herein, whereby one

Shri Ab Rashid Chopan son of Mohd Sultan Chopan resident of Adijan Tehsil D.H. Pora District Kulgam (herein after referred to as 'detenue')

has been placed under preventive detention, must succeed for following reasons:

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. In the instant

case grounds of detention in question make mention of case - FIR No. 64/2010 u/s 392 RPC, 7/25 A.Act, registered at Police Station D.H. Pora

against detenue. It appears that the said case has weighed with detaining authority at the time detention order in question was made. Copies of

First Information Report, statements recorded u/s 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case has

not been furnished to detenue. It is pertinent to point out that the respondent No. 2, in grounds of detention after detailing the background, in which

aforesaid case was registered against detenue, proceeds to opine 'It is manifest from factual position as at pre-paras that your activities are highly

prejudicial to the security of the State'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The

detention order or grounds of detention do not reveal that copies of FIR or material collected during investigation of the aforementioned case was

at the time of execution of detention warrant or immediately thereafter made available to the detenue to enable him to exercise his Constitutional

and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978. The Constitutional and

Statutory Safeguards are meaningless 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 the Detaining Authority and thereafter the Government

that their apprehensions as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the

detention order is based, the detenue would not be in a position to make an effective representation against his detention. The failure on the part of

Detaining Authority to supply the material relied at the time of making detention order, renders detention illegal and unsustainable. It is not

necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned

hereinafter, would suffice. The principle of law, finds expression in Dhananjoy Das Vs. District Magistrate, Darrang and Another, ; Sophia Gulam

Mohd. Bham Vs. State of Maharashtra and Others, ; Union of India (UOI) Vs. Ranu Bhandari, ; Syed Aasiya Indrabi versus State of Jammu and

Kashmir and Others 2009 (I) S.L.J 219; and Thahira Haris etc. Vs. Government of Karnataka and Others, .

Article 22(5) Constitution of India 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 the maintenance of public order or security of the 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 the 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 his 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 be associated with the militants of 'HM' outfit belonging to Peer Panchal Regiment. The detenue is

not informed with sufficient clarity the organization with which the detenue is allegedly associated. The word/expression like 'HM' is too vague to

make the detenue aware of the exact accusation levelled against him. The detaining authority has not to work on assumptions and presumptions

that whatever acronyms it is aware of must be necessarily known to the detenue. The reference to the activities of 'HM' outfit is rendered

meaningless in view of non-description of the organization with which the detenue is alleged to be associated. The detenue is alleged to be

arranging/providing financial assistance to militants as also arranging transportation of arms/ammunition and cash of militants from one place to

another. The detenue is not informed with sufficient clarity the exact allegations levelled and furnished the particulars of militants, for whom the

detenue is alleged to have arranged/provided financial assistance as also transportation of arums/ammunition nor the particulars of the places. 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 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

rights of the detenue to make a representation against his detention are to be 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 Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather

Vs. State of Jammu and Kashmir and Others, ; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 219.

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 right to submit a representation to the Detaining Authority till the detention was considered by the

Government and approved. The respondent No. 2 has in effect violated Constitutional and Statutory rights of detenue, guaranteed under Article

22(5), Constitution of India and Section 13, Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the law laid down in

State of Maharashtra and Others Vs. Santosh Shankar Acharya, .

Viewed thus, the petition is allowed and detention order No. 28/ DMK/PSA/10 dated 23rd November 2010, passed by the District

Magistrate, Kulgam respondent No. 2, directing detention of Shri Ab Rashid Chopan son of Mohd Sultan Chopan resident of Adijan Tehsil D.H.

Pora District Kulgam, quashed.

The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 28/DMK/PSA/10

dated 23rd November 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under order No.

28/DMK/PSA/10 dated 23rd November 2010.

Disposed of.