Manzoor Ahmad Wagay vs State of Jammu & Kashmir and others

Hasnain Massodi, Judge

Challenge to order No. 08/DMK/PSA/2010 dated 12.07.2010, of District Magistrate, Kulgam respondent No. 2 herein, whereby one Shri

Manzoor Ahmad Wagay son of Ama Wagay resident of Drangbal, Tehsil D.H. Pora, District Kulgam (herein after referred to as 'detenue') has

been placed under preventive detention must succeed for the following reasons:-

The respondent No. 2 has, at the very threshold, ordered detention of detenue for a period of 12 months. The respondent No. 2 a senior officer in

the State Administration, is expected to be aware that the detention order made u/s 8(1) of J&K Public Safety Act read with Sub Section (1) is to

survive in terms of Section 8 (4) of J&K Public Safety Act, 1978, for a period of 12 days, unless within said period detention order finds approval

of the Government. The respondent No. 2 by placing the detenue under preventive detention for a period of 12 months in one go has not only

overstepped his authority and trespassed over the powers of Government but closed all doors for detenue to make a representation against

preventive detention. It needs no emphasis that a detenue, under Article 22(5) Constitution of India and Section 13 of the J&K Public Safety Act,

has a valuable right to make a representation against his detention to the Detaining Authority, immediately after the detention is made and thereafter

to the Government. The detenue has a right to convince the Detaining Authority that the activities attributed to him and apprehended by the

Authority are devoid of any substance; that the detenue is a peace loving citizen and there is no reason to suspect that his acts of omission and

commission in any manner are prejudicial and detrimental to the security of the State. Once the Detaining Authority orders detention for 12 months,

the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation

against his preventive detention. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and

Statutory right. The Detaining Authority by deciding on the period of detention at the initial stage, has violated Constitutional and Statutory rights of

the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act.

It is pertinent to point out that the Detaining Authority intriguingly has referred to the 'grounds of detention' to have been prepared by

Superintendent of Police, Kulgam, and placed before Detaining Authority. The Detaining Authority may get inputs from different agencies, including

Senior 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 Constitutional and Statutory safeguards, guaranteed to a person detained under preventive detention law, are

meaningless unless and until the detenue is made aware of and furnished all the material that weighed with the 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 the detenue. The

endorsement on the reverse of the detention order made by the Executing Officer ASI Abdul Hamid No. 19/KP of P/S D.H. Pora, Kulgam, 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. 144/2002 u/s 457, 427 RPC; FIR No. 50/2005 u/s 7, 4/25 A. Act; and FIR No. 50/2010 u/s 393/RPC, 7/25 A. Act at Police Station D.H.

Pora, to have been registered against the detenue. It appears that the said cases have weighed with Detaining Authority at the time detention order

in question was made. Copies of First Information Reports, statements recorded u/s 161 Cr.P.C. and other material collected in connection with

investigation of aforesaid cases has not been furnished to detenue. The material, mentioned above, thus assumes significance in the facts and

circumstances of the case. The detention record does not reveal that copies of FIRs or material collected during investigation of the

aforementioned cases was at the time of execution of detention warrant or immediately thereafter made available to the detenue to enable him to

exercise his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act,

1978. The Constitutional and Statutory Safeguards are meaningless 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 the Detaining Authority and

thereafter the Government that their apprehensions as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied

the material on which the detention order is based, the detenue would not be in a position to make an effective representation against his detention.

The failure on the part of Detaining Authority to supply the material relied at the time of making detention order, renders detention 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 is alleged to be 'OGW' of 'HM' outfit. The words/expressions like 'OGW' and 'HM' are too vague to make the

detenue aware of exact accusations leveled against him. The detaining authority has not to work on assumptions and presumptions that whatever

acronyms it is aware of must be necessarily known to the detenue. The detenue is alleged to have been indulging in extorting of money from the

people to provide financial assistance to the outfit, preparing/instigating youth to join militancy and providing information to militants about

movement of security forces. The detention record does not reveal that the detenue is furnished the necessary details of person(s), from whom

money was extorted nor the details of militants, to whom the financial assistance was provided by detenue. The militants, to whom the information

regarding movement of security forces was being allegedly provided/transmitted by the detenue, are not identified nor their identity disclosed. 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 Detailing Authority and

other respondents that the allegations against 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 detaining authority. The detenue has been kept guessing about the facts and events that

weighed with detaining authority and prompted detaining authority 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.

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 Constitution 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 Vs. Santosh Shankar Acharya, .

Viewed thus, the petition is allowed and detention order No. 08/DMK/PSA/2010 dated 12.07.2010, passed by the District Magistrate,

Kulgam respondent No. 2, directing detention of Shri Manzoor Ahmad Wagay son of Ama Wagay resident of Drangbal, Tehsil D.H. Pora,

District Kulgam, quashed.

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

08/DMK/PSA/2010 dated 12.07.2010. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide

order No. 08/DMK/PSA/2010 dated 12.07.2010.

Detention record be returned to the counsel for respondents.

Disposed of.