Gazanfar Ahmad Hajam vs State of Jammu & Kashmir and others

Hasnain Massodi, Judge

Challenge to order No. DMS/PSA/06/2010 dated 19.05.2011, of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri

Gazanfar Ahmad Hajam son of Haji Gh Qadir Hajam resident of Hajam Mohalla Nowgam Srinagar (herein after referred to as 'detenue') has been

placed under preventive detention, must succeed for following reason(s):

Article 22(5) of 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 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 the detenue to convince the 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 along with other associates is alleged to have instigated the youth to resort to stone pelting, injuring police

personnel and damaging public and government property. The detenue is not informed with sufficient clarity the exact allegations levelled and

furnished the particulars of associates, who are stated to be responsible for indulging in stone pelting, damaging public property nor the particulars

of public property alleged to have been damaged by detenue and his associates. The detention record does not reveal that the detenue is furnished

the necessary details of occurrence(s) attributed to him and his unnamed and unidentified accomplices. The detenue is also alleged to be behind

every stone pelting incident and instigating others to resort to similar activities. 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 much less make an effective and meaningful representation. The detenue

has been kept guessing about the facts and events that weighed with detaining authority and prompted him 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 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 2009 219.

Viewed thus, the petition is allowed and detention order No. DMS/PSA/06/2010 dated 19.05.2011, passed by the District Magistrate,

Srinagar respondent No. 2, directing detention of Shri Gazanfar Ahmad Hajam son of Haji Gh Qadir Hajam resident of Hajam Mohalla Nowgam

Srinagar, quashed.

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

DMS/PSA/06/2010 dated 19.05.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide

order No. DMS/PSA/06/2010 dated 19.05.2011.

Detention record be returned to the counsel for respondents.

Disposed of.