Imtiyaz Ahmad Bhat vs State

Bansi Lal Bhat, J.—Through the medium of instant Habeas Corpus Petition, detenue--Imtiyaz Ahmad Bhat seeks quashment of detention

order No. 08/DMA/PSA/DET/2013 dated 20.06.2013 which has been slapped upon him by District Magistrate Anantnag invoking powers u/s 8

of the Jammu and Kashmir Public Safety Act as his activities were found to be ""prejudicial to the security of the State"" and ""maintenance of public

order"". The detenue stands lodged in District Jail-Hiranagar, Jammu. He was already in custody in case under FIR No. 87/2013 under Sections

13(1)(b), 16, 18, 20, 40 ULA(P) Act, Police Station Anantnag, when the detention order was slapped upon him. Learned counsel for petitioner

contended that in the impugned order of detention, the detaining authority has not spelt out any compelling reasons for detaining the detenue while

he was already in custody in case under FIR No. 87/2013. He has further contended that in the impugned order of detention, it is recorded that

the District Magistrate was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the ""security of the State"" and

maintenance of public order"", it was necessary to detain him under the provisions of the Jammu and Kashmir Public Safety Act, 1978. The

grounds of detention are concluded as follows;

Therefore, it is clear that your activities are highly prejudicial to the security of the State and maintenance of public order and warrant immediate

preventive measures to be taken against you.

Adverting to the Record, it appears that the District Magistrate is not certain whether the alleged activities of the detenue posed threat to the

security, of the State"" or to ""maintenance of public order"". This suggests non-application of mind while passing the order of detention. Learned

counsel for petitioner has placed reliance upon the judgment of Hon'ble Apex Court rendered in G.M. Shah Vs. State of Jammu and Kashmir, . It

reads;

As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia v. State of Bihar & Ors. one has to imagine three concentric circles,

in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle

representing ""public order"" and the smallest circle represents ""security of State"". It is then easy to see that an act may affect law and order but not

public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions

acting in any manner prejudicial to the security of the State"" and ""acting in any manner prejudicial to the maintenance of public order"" separately.

An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is

acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to

the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detent

has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh C. Arif Ali & Ors. (2) and Satya Brata Ghose v. Arif Ali

& Ors.(3).

Learned counsel for petitioner next contended that the material forming the basis for grounds of detention including the dossier and connected

documents referred to in the order of detention have not been supplied to the detenue, who has been deprived of making an effective

representation against the order of detention. Thus, it is contended, the right guaranteed under Article 22(5) of the Constitution of India stands

infringed.

The grounds of detention give a narrative of the activities and previous history of the detenue. However, it was imperative for detaining authority

to furnish copies of such documents to the detenue for making an effective representation. Non furnishing of copies of such documents to the

detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same

renders the order of detention as illegal.

Article 22(3)(b) of the Constitution of India which carves out an exception to Article 21 of the Constitution of India guarantying right to liberty,

authorizes the concerned authorities to pass orders in the nature of preventive detention but while passing such orders, authority concerned has to

be alive to the mandate of Article 21 protecting personal liberty of a person. Such power is required to be exercised in a manner, which does not

have the trappings of depriving a person of the liberty guaranteed by the Constitution of India. An exceptional case has to be carved out justifying

preventive order. Procedural safeguards have to be observed. A detenue can claim prejudice, if procedural safeguards are not adhered to. He can

claim that his liberty had been curtailed de hors the law. Law laid down by Hon'ble Apex Court in Rekha Vs. State of T. Nadu tr. Sec. to Govt.

and Another, fortifies this view.

In view of the facts attending upon this case and the legal position discussed hereinabove, the impugned order of detention is held to be

unsustainable. Same deserves to be quashed.

For the aforesaid reasons, impugned detention order dated 20.06.2013 is quashed and the detenue is ordered to be released from preventive

custody forthwith unless required in connection with some other case. Disposed of.