Irfan Ahmad Pampori vs State of Jammu & Kashmir and Others

Gh. Hasnain Massodi, Judge

Challenge in this petition is to order No.DMS/ PSA/45/2010 dated 22nd July 2010, of District Magistrate, Srinagar - respondent No.2 herein,

whereby one Shri Mohammad Irfan Pampori Code Sameer (Irfan Ahmad Pampori) son of Ali Mohammad Pampori resident of Malik Sahab, Safa

Kadal, Srinagar (herein after referred to as ""detenue"") has been placed under preventive detention. The petitioner is brother 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 was, without any cause or justification, apprehended on 17.07.2010,

whereafter detention order No. DMS/ PSA/45/2010 dated 22nd July 2010, was 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 detenue of his Constitutional and Statutory

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

The respondents have, in their Counter Affidavit, disputed the averments made in the petition and insisted that the activities of detenue are highly

prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue at the time

of execution of detention warrant and same were read over and explained to the detenue. The detention order is said to have been approved by

the State Advisory Board and also by the Government vide No.Home/PB-V/2068/2010 dated 15th September 2010. The Learned Government

Advocate has made available detention record to lend support to the case set up in counter affidavit.

Heard, perused and considered.

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

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

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

Srinagar vide No. Lgl/Det-2597/2010/2702-05 dated 20.07.2010. The detention record, however, 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 -

ASI, Gh. Hassan, No.297 GBL, at present Police Station Safakadal, Srinagar, 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. 98/2010 u/s 147, 148, 336, 188 RPC and FIR

No.99/2010 u/s 307, 336,148, 332, 353 RPC, at Police Station Safa Kadal, to have been registered against the detenue. The involvement of the

detenue in aforementioned case(s) appears to have heavily weighed with Detaining Authority while making Detention Order. The record does not

indicate that copies of aforementioned First Information Report(s), statements recorded u/s 161 Cr.P.C. and other material collected in connection

with investigation of aforesaid case(s), were ever supplied to detenue. It is pertinent to point out that Grounds of Detention, after detailing

background, in which aforesaid case was registered against detenue, proceed to state ""...it is clear that your activities are highly pre-judicial to the

maintenance of public order."" 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 detention record

made available by Learned Government Advocate reveals 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 v. 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) 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 the public order. Article 22(5) of the Constitution and Section 13 of the Act,Jhus make it obligatory for Detaining

Authority to provide detenue an earliest opportuni ty 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 his 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 and his ""associates"" is alleged to be responsible for indulging in stone pelting, attacking ""CRPF Jawans by pelting

stones on them"", ""attacking vehicles"" and ""injuring Jawans"". The detenue is not informed with sufficient clarity the exact allegations leveled and

furnished the particulars of ""associates"", who are stated to be responsible for indulging in stone pelting, nor the particulars of 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. Moreover,

grounds of detention do not contain details of vehicles and shops and other property or their exact locality, on which the detenue is alleged to have

pelted stones. 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 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 rights of the detenue to make a representation against his detention are to be taken to have been violated.

Reference in this regard may be made to 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 Syed Aasiya Indrabi v. State of J&K and others, 2009 (I)

SLJ 2009 219.

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

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

Government and the Government accorded its approval to the detention. The respondent No.2 has thus violated Constitutional and Statutory rights

of the detenue, guaranteed under Article 22(5) of the Constitu tion of India and Section 13 of J&K Public Safety Act. It would be apt to make a

reference in this regard to the law laid down in State of Maharashtra and others v. Santosh Shanker Acharya, AIR 2000 SC 2 : 504.

That though the detenue is said to have made a representation through his father - Ali Mohammad Pampori, yet consideration of representation

appears to have been an empty formality inasmuch as the State Advisory Board, as is evident from the detention record, was not handed over

copy of the representation. The State Advisory Board in order dated 01.09.2010 has recorded the detenue not to have made any representation

to the Government to controvert the allegations eveled against him.

Viewed thus, the petition is allowed and detention order No. DMS/ PSA/45/2010 dated 22nd July 2010, passed by the District Magistrate

Srinagar -respondent No. 2, directing detention of Shri Mohammad Irfan Pampori Code Sameer (Irfan Ahmad Pampori) son of Ali Mohammad

Pampori resident of Malik Sahab, Safa Kadal, 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/45/2010 dated 22nd July 2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under

order No. DMS/PSA/45/2010 dated 22nd July 2010.

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