Bilal Ahmad Marazi vs State of Jammu & Kashmir and others

Honble Mr. Justice Hasnain Massodi, Judge

Challenge in this petition is to order No. 172/DMB/PSA/2010 dated 14.02.2011, of District Magistrate, Baramulla respondent No. 2 herein,

whereby one Shri Bilal Ahmad Marazi son of Mehraj-ud-din Marazi resident of Khowjabagh Tehsil and District Baramulla (herein after referred to

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

The respondent No. 2 has intriguingly mentioned that 'on the basis of grounds of detention placed before me (him)', the detenue is placed under

preventive detention from acting in any manner prejudicial to the security of the State. The Detaining Authority may get inputs from different

agencies including Superintendent of Police of the concerned District. Responsibility to formulate grounds of detention, however, rests with the

Detaining Authority. It is Detaining Authority, who has to go through the reports and other inputs received by him from concerned police and other

agencies and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is thus for the

Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive

detention. The detention order, for the said reasons, exhibits total non-application of mind by the detaining authority. The detention order is liable

to be quashed on this ground alone.

The grounds of detention make reference to case - FIR No. 149/2010 u/s 436, 148, 149 RPC & 3 PPPD Act and FIR No. 201/2010 u/s

148, 149, 336, 332, 307, 341 RPC at Police Station Baramulla, to have been registered against the detenue. The involvement of detenue in the

aforementioned cases appears to have heavily weighed with detaining authority while making detention order. The available record as also counter

affidavit do 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 cases, 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 manifest from factual

position as at prepares (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 respondents, in their counter affidavit, have not controverted the plea that the

said material was not furnished to detenue. The available record as also counter affidavit reveal that none of the documents referred to in the

detention order was 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 support

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 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 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. 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 alongwith other rioters is alleged to be responsible for indulging in stone pelting and attacking 'Police/security

personnel', with the intention to kill them, which resulted in injuries to '42 police/security personnel'. The detenue is not informed with sufficient

clarity the exact allegations levelled and furnished the particulars of rioters/associates, who are stated to be responsible for indulging in stone

pelting, nor the particulars of police and security personnel, who are alleged to have been attacked and injured by the detenue by pelting stones on

them. The counter affidavit as also detention record, do not reveal that the detenue is furnished the details of occurrence attributed to the detenue

and his unnamed and unidentified associates. 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 Detaining Authority to order detention is vague and

ambiguous, Constitutional and Statutory right of the detenue to make a representation against his detention, must 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.

Viewed thus, the petition is allowed and detention order No. 172/DMB/PSA/2010 dated 14.02.2011, passed by the District Magistrate,

Baramulla respondent No. 2, directing detention of Shri Bilal Ahmad Marazi son of Mehraj-ud-din Marazi resident of Khowjabagh Tehsil and

District Baramulla, quashed.

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

172/DMB/PSA/2010 dated 14.02.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide

order No. 172/DMB/PSA/2010 dated 14.02.2011.

Detention record be returned to the counsel for respondents.

Disposed of.