Ghulam Mohi-ud-din Ganai vs State of Jammu & Kashmir and others

Hasnain Massodi, Judge

Challenge to order No. DMS/PSA/04/2010 dated 07.05.2011, of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri

Ghulam Mohi-ud-din Ganie son of Mohammad Ibrahim Ganie resident of Gund Hassibhat, Srinagar (herein after referred to as 'detenue') has been

placed under preventive detention, must succeed for following reasons:

The grounds of detention make reference to case - FIR No. 194/2009 u/s 48 Excise Act, 6/13 Drug Control Ordinance; FIR No. 189/2010 u/s

147, 148, 149, 435, 307, 336, 341, 427 RPC at Police Station Parimpora, 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 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 Gh. Mohiudin No. 5212/NGO of P/S 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 detention record does 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 cases were

registered against detenue, proceeds to opine ""Therefore, it is clear that your activities are highly prejudicial to the maintenance of public order""..

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

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 is also alleged to be responsible for instigating the youth to indulge in stone pelting, and resort to violence,

and selling intoxicating drugs to them. The detenue is not informed with sufficient clarity the exact allegations leveled and furnished the particulars of

youths, who are stated to have been instigated by detenue to indulge in stone pelting, resort to violence and sold intoxicating drugs to them. 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 respondent No. 2 and

other respondents that the allegations against the detenue were bereft of any basis. To sum up, 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 respondent No. 2. The detenue has been kept guessing about the facts and events that

weighed with respondent No. 2 and prompted respondent No. 2 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/04/2010 dated 07.05.2011, passed by the District Magistrate,

Srinagar respondent No. 2, directing detention of Shri Ghulam Mohi-ud-din Ganie son of Mohammad Ibrahim Ganie resident of Gund Hassibhat,

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/04/2010 dated 07.05.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide

order No. DMS/PSA/04/2010 dated 07.05.2011.

Detention record be returned to the counsel for respondents.

Disposed of.