Azhar Ali vs State of Jammu & Kashmir and Others

Hasnain Massodi, Judge

Challenge to order No. DMK/PSA/2011/48-53 dated 14.05.2011, of District Magistrate, Kishtwar-respondent No. 2 herein, whereby one

Shri Azhar Ali Son of Ghulm Mohd Butt resident of Village Kejai Tehsil Padder Distsrict Kishtwar (herein after referred to as ""detenue"") has been

placed under preventive detention, must succeed for following reasons:

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 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), Constitution of India 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 be OGW of ""HM"" outfit. The words/expressions like ""OGW"" and ""HM"", are 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. In the instant case the detenue is alleged to have closed association

with ""Subash @ Wasif and ""Amir Kamal @ Akram"". The detenue was not provided the particulars of ""Subash @ Wasif and ""Amir Kamal @

Akram"", and the detenue thus has been prevented from explaining that the detenue had nothing to do with ""Subash @ Wasif and ""Amir Kamal @

Akram"". The detenue, in absence of such details, could not be expected to have been in a position to give his side of story and persuade the

detaining authority and other respondents that the allegations against the detenue were bereft of any basis. The grounds of detention that constitute

basis for the detention order in question are ambiguous, vague, uncertain and hazy. A person of ordinary prudence would not be in a position to

explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenue has been kept guessing about the facts and

events that weighed with the detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the

material to warrant preventive detention of the detenue. 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 Bhardwaj Vs. The State of Delhi and Others, ; Chaju Ram Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather Vs. State

of Jammu and Kashmir and Others, ; and Syed Aasiya Indrabi v. State of J&K and others (SLJ 2009 (I) 219), (2009 (3) JKJ 707 [HC]).

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 as well as detention order in question make mention of case-FIR No. 242/2010 u/s 363/120B RPC, 13/18ULA Act,

Police Station Kishtwar, to have been registered against the detenue. The involvement of detenue in the aforementioned case appears to have

heavily weighed with detaining authority while making detention order. The detention record reveals that none of the documents referred to in the

detention order was ever supplied to detenue. The endorsement on the reverse of the detention order made by the Executing Officer-SI Rajeev

Kumar of P/S Kishtwar, 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 detention record does not

indicate that copies of aforementioned First Information Report, 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. 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), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material

on which the detention order is based, is supplied to 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 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 Dhananjoy Das Vs. District Magistrate,

Darrang and Another, ; Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, ; Union of India v. Ranu Bhandari (2008, Cr. L.J.

4567); Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others ( S.L.J. 2009 (I) 219), (2009 (3) JKJ 707 [HC]); and Thahira Haris etc.

Vs. Government of Karnataka and Others, .

Viewed thus, the petition is allowed and detention order No. DMK/PSA/2011/48-53 dated 14.05.2011, passed by the District Magistrate,

Kishtwar-respondent No. 2, directing detention of Shri Azhar Ali Son of Ghulm Mohd Butt resident of Village Kejai Tehsil Padder Distsrict

Kishtwar, quashed.

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

DMK/PSA/2011/48-53 dated 14.05.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered

vide order No. DMK/PSA/2011/48-53 dated 14.05.2011.

Detention record be returned to the counsel for respondents. Disposed of.