Mukhtar Ahmad Dar vs State

Bansi Lal Bhat, J.—Petitioner's case is that while he was arrested on 3rd June, 2013 by Police Station Anantnag for his involvement in case

registered under FIR No. 160/2013 for offence u/s 307 RPC and 7/25 Arms Act, a detention order passed u/s 8 of the Jammu and Kashmir

Public Safety Act came to be slapped upon him as his activities were alleged to be prejudicial to the ""security of the State"" and ""maintenance of

public order"". He was lodged in Central Jail Kote-Bhalwal, Jammu. Through the medium of instant petition, he seeks quashment of detention order

dated 20.06.2013 on various grounds enumerated in the petition. Respondents failed to file counter affidavit. However, the Record was made

available for perusal.

Learned counsel for petitioner 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. In the grounds of detention, it is recorded that

the detenue joined militant ranks at the instance of one Amir Syed Salathi of HM outfit and started to motivate youth of Town Anantnag to indulge

in unlawful activities, viz armed attacks and ambushes on the Members of Security Forces; that arms and ammunition was recovered from the

detenue for which number of FIRs were registered against him; that he was introduced to Umer and Irshad; that Umer handed over a Hand

Grenade to him with direction to throw it on PP Sherbagh; that the detenue threw the Hand-Grenade on PP Sherbagh on 2nd June, 2013 at 8.30

PM; that case FIR No. 160/2013 u/s 307 RPC and 7/25 Arms Act was registered against detenue at Police Station Anantnag; that the detenue

was in police custody and in case, enlarged on bail, he would indulge in the activities which are ""prejudicial to the security of the State"" and

maintenance of public order"". 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 20.062013 is quashed and the detenue is ordered to be released from preventive

custody forthwith unless required in connection with some other case. Disposed of Record be returned to the concerned.