Ashiq Hussain Wanth vs State

Bansi Lal Bhat, J.—Through the medium of instant Habeas Corpus Petition, detenue-Ashiq Hussain Wanth seeks quashment of detention

order No. DMS/PSA/23/2013 dated 26.12.2013 which has been slapped upon him by District Magistrate Srinagar invoking powers u/s 8 of the

Jammu and Kashmir Public Safety Act [Refer JK Laws 2nd Ed. 2013 Vol. 27 P-33] as his activities were found to be ""prejudicial to the

maintenance of security of the State"". The detenue stands lodged in District Jail Kupwara. Respondents have failed to file counter. However, the

Record was made available by learned counsel for the State for perusal.

Learned counsel for petitioner contended that in the impugned order of detention, it is recorded that the District Magistrate, Srinagar was

satisfied that with a view to prevent the Detenue from acting in any manner ""prejudicial to the maintenance of security of the State"", it was

necessary to detain him under the provisions of the Jammu and Kashmir Public Safety Act, 1978. The grounds of detention are concluded as

follows;

Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of the State and warrant immediate preventive

measures to be taken against you to prevent the society from violence, strikes, economic adversity and social indiscipline.

Adverting to the Record, it appears that the District Magistrate is not certain whether the alleged activities of the detenue posed threat to the

security of the State"" or to ""maintenance of public order"". This suggests non-application of mind while passing the order of detention. Learned

counsel for petitioner has placed reliance upon the judgment of Hon'ble Apex Court rendered in G.M. Shah Vs. State of Jammu and Kashmir, . It

reads;

As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia v. State of Bihar & Ors. one has to imagine three concentric circles,

in order to understand the meaning and import of the above expressions. '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 not 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 detent

has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh C. Arif Ali & Ors. (2) and Satya Brata Ghose V. Arif Ali

& Ors.(3).

Learned counsel for petitioner next contended that the material forming the basis for grounds of detention including the dossier and connected

documents referred to in the order of detention have not been supplied to the detenue, who has been deprived of making an effective

representation against the order of detention. Thus, it is contended, the right guaranteed under Article 22(5) of the Constitution of India [Refer

JK'S Constitution of India P-27] stands infringed. Since counter has not been filed, allegations in the petition are deemed to have been admitted.

The grounds of detention give a narrative of the activities and previous history of the detenue. However, it was imperative for detaining authority

to furnish copies of such documents to the detenue for making an effective representation. Non furnishing of copies of such documents to the

detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same

renders the order of detention as illegal.

Article 22(3)(b) of the Constitution of India [Refer JK'S Constitution of India P-26] which carves out an exception to Article 21 of the

Constitution of India [Refer JK'S Constitution of India P-24] guarantying right to liberty, authorizes the concerned authorities to pass orders in the

nature of preventive detention but while passing such orders, authority concerned has to be alive to the mandate of Article 21 protecting personal

liberty of a person. Such power is required to be exercised in a manner, which does not have the trappings of depriving a person of the liberty

guaranteed by the Constitution of India. An exceptional case has to be carved out justifying preventive order. Procedural safeguards have to be

observed. A detenue can claim prejudice, if procedural safeguards are not adhered to. He can claim that his liberty had been curtailed de hors the

law. Law laid down by Hon'ble Apex Court in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, fortifies this view.

The impugned detention order cannot be supported for an additional reason. The detaining Authority has, in grounds of detention, mentioned

that the detenue had been arrested in connection with investigation of case registered under FIR No. 79/2013 and he was lodged in Police Station,

Soura at the time of passing of impugned detention order. The detention order has been passed on the basis of dossier supplied by SSP, Srinagar

on 26.11.2013. However, from the docket issued by learned CJM, Srinagar, it transpires that the detenue had been released on bail on

23.11.2013. It is manifestly clear that the detaining authority has not shown awareness of the fact of detenue being enlarged on bail, which shows

non-application of mind on the part of detaining Authority warranting quashing of the detention order in terms of the mandate of law laid down by

the Hon'ble Apex Court in Anant Sakharam Raut Vs. State of Maharashtra and Another, .

In view of the facts attending upon this case and the legal position discussed hereinabove, the impugned order of detention is held to be

unsustainable. Same deserves to be quashed.

For the aforesaid reasons, impugned detention order No. DMS/PSA/23/2013 dated 26.12.2013 is quashed and the detenue is ordered to be

released from preventive custody forthwith unless required in connection with some other case. Disposed of. Record be returned to the concerned.