Bashir Ahmad Sheikh vs State of Jammu & Kashmir and Others

Gh. Hasnain Massodi, Judge

Challenge in this petition is to order No.DMS/PSA/ 53/2010 dated 5th August 2010, of District Magistrate, Srinagar - respondent No.2 herein,

whereby one Shri Bashir Ahmad Sheikh @ Pepsi son of Ghulam Mohammad Sheikh resident of Zainakote, Srinagar (herein after referred to as

detenue"") has been placed under preventive detention directed to be lodged in District Jail, Rajouri. The petitioner is wife of detenue and thus

interested in his life and liberty and competent to maintain the petition.

The petitioner's case, as set out in the petition, is that the detenue, a handicapped, and father of six children, was, without any cause or

justification, apprehended on 01.08.2010 and subsequently detention order No. DMS/PSA/53/2010 dated 5th August 2010, slapped upon the

detenue. The respondents are stated to have ignored to provide material, relied upon by Detaining Authority to order detention and thus deprived

cletenue of his Constitutional and Statutory rights. Grounds of Detention are stated to be vague, non-existent and unfounded.

The Learned Senior Additional Advocate General has made available detention record, which reveals that the detention order has been

approved by the Government in terms of Government order No.Home/PB-V/2169/2010 dated 21st September 2010 as also by the State

Advisory Board.

I have gone through the petition as also detention record. I have heard learned counsel for the petitioner as well as learned Senior Additional

Advocate General, appearing for respondents.

The Detention Order is liable to be quashed for the following reasons:

(I) The Detention order makes mention of material record such as dossier and other connecting documents"" relied upon by the Detaining Authority

while making :he detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police,

Srinagar. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The

endorsement on the reverse of the detention order made by the Executing Officer - Sub Inspector, Showkat Ahmed, No.7584/NGO, Police

Station Parimpora, 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 grounds of detention make

reference to case - FIR No. 16/2010 u/s 147,148,149, 336, 341, 427, 353, 307, 395,120-B, Police Station Parimpora, claimed to have been

registered against the detenue. The involvement of the detenue in aforementioned case appears to have heavily weighed with Detaining Authority

while making Detention Order. The 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. It is pertinent to point out

that the Detaining Authority in Grounds of Detention, after detailing background, in which aforesaid case was registered against detenue, proceeds

to opine ""It is clear that your activities are highly prejudicial to the maintenance of public order and warrant immediate preventive measure to be

taken against you so as to prevent the society from violence, strikes, economic adversity and social indiscipline"". The material, mentioned above,

thus assumes significance in the facts and circumstances of the case. The detention record made available by Learned Senior Additional Advocate

General reveals that none of the documents referred to in the detention order was ever supplied to the 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 suoport from 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 v. State of

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

the State or maintenance of the public order. 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 present case, the reasons spelt out in the grounds of detention include an apprehension that the detenue has formed a group of gullible youth

whom he instigate to resort to stone pelting in order to disturb the public order. The other ground that is claimed to have weighed with the

Detaining Authority, is that the detenue is organizing stone pelting incidents and is main instigator in such incidents. The grounds of detention also

make mention of petitioner being resident of Zainakote Srinagar, a highly sensitive area of the city, and said to have been entrusted the task of

orchestrating and carrying out the incidents of stone pelting in the area. The grounds of detention ex facie are vague, ambiguous and sketchy and

not clear to enable a man of common prudence to explain his stand muchless make an effective and meaningful representation. The detenue is not

informed with clarity about his alleged activities that may prejudice maintenance of public order. The detenue is not furnished the particulars of

youths, who are stated to be instigated by the detenue, to resort to stone pelting nor of the persons, who are stated to have entrusted the petitioner

the task of orchestrating and carrying out the incidents of stone pelting. The grounds of detention thus are vague, sketchy and lacking in important

details. The respondents, by their conduct, have deprived detenue of his Constitutional and Statutory rights, guaranteed under Article 22(5) and

section 13 of the J&K Public Safety Act. It is well settled law that even if one, amongst various grounds of detention, is found to be vague, the

Constitutional and Statutory safeguards available to detenue, are to be held to have been violated. View taken finds support from the law laid

down in Dr. Ram Krishan v. 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 Sycd Aasiya Indrabi v. State of J&K and others (2009 (I) SLJ 2009 219). (III) The

Detaining Authority - respondent No.2, did not inform the detenue that the detenue independent of his right to file representation againsthis

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

Government and accorded approval. The respondent No.2 has in effect 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. 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. DMS/PSA/53/2010 dated 5th August 2010, passed by the District Magistrate,

Srinagar-respondent No. 2, directing detention of Shri Bashir Ahmad Sheikh @ Pepsi son of Ghulam Mohammad Sheikh resident of Zainakote,

Srinagar, is quashed.

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

DMS/PSA/53/2010 dated 5th August 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered

vide order No. DMS/PSA/53/2010 dated 5th August 2010.

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