Nazir Ahmad Pathan vs State of Jammu & Kashmir and others

Hasnain Massodi, Judge

Preventive detention as held in A.K. Gopalan Vs. The State of Madras, and reiterated in Rekha Vs. State of Tamil Nadu ( AIR 2011 SCW

2262) is by its very nature repugnant to democratic ideals and an anathema to the rule of law. The Supreme Court in Rekha's case (supra), while

emphasising that Article 22(3)(b), Constitution of India, is to be read as an exception to Article 21, Constitution of India and not allowed to nullify

the right to personal liberty guaranteed under the later, observed:

Since however, Article 22 (3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power

of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of

India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Penal Code and other penal statues) can

deal with the situation, recourse to the preventive detention law will be illegal'.

The Court further observed:

It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or

reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as

'jurisdiction of suspicion' The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22

specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate

within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and

meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.

The Court, making reference to law laid down in Kamleshwar Ishwar Prasad Patel Vs Union of India and Others (1995) 2 SCC 51 (para 49),

observed:

the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by

the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue

The Court quoted with approval following observation made in Ratan Singh Vs State of Punjab and others, 1981 (4) SCC, emphasising the need

to ensure that the Constitutional and Statutory safeguards available to a detenue were followed in letter and spirit held;

But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have

any meaning in our democratic set-up, it is essential that at-least those safeguards are not denied to the detenu's

Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another, in following

words:

The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction

of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the

subject and the Constitutional rights guaranteed to him in that regard

The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is

called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under

Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to.

Let us, now shift focus to the present case to see whether the procedural safeguards have been meticulously and strictly followed while ordering

preventive detention of petitioner.

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 order

makes mention of material record such as 'dossier and other connecting documents' relied upon by the Detaining Authority while making detention

order. The detention order also makes reference to a communication No. CS/D-1/11/5861 dated 19.10.2011, received from Superintendent of

Police, Shopian. The detention record as also counter affidavit reveal that none of the documents referred to in the detention order was ever

supplied to detenue. The grounds of detention make reference to case - FIR No. 304/2011 u/s 364 RPC; FIR No. 186/2002 u/s 366, 506 RPC;

and FIR No. 21/2011 u/s 366, 376 RPC, Police Station Shopian, claimed 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

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 the grounds

of detention, after detailing background, in which aforesaid cases were registered against detenue, proceeds to opine 'In view of the above facts, it

is evident that you are deeply involved in militancy related activities and your activities are still highly prejudicial to the sovereignty and territorial

integrity of the State/Country and threat to 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), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material on which the

detention order is based, is supplied to detenue. It is only after the detenue has all said material available that he can make an effort to convince the

Detaining Authority and thereafter the Government that their apprehension as regards activities of detenue are baseless and misplaced. If the

detenue is not supplied material, on which detention order is based, he 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

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 trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial

to the security of the State or maintenance of public order. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for

Detaining Authority to provide detenue 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 the 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 have been arranging food/shelter for terrorists, delivering the messages of Commanders to other

terrorists of the outfit, providing information about movement of security forces to the terrorists. The detenue has not been given particulars of

militants/terrorists to whom the detenue is alleged to have been providing food/shelter, delivering messages of commanders to other terrorists. It

was incumbent upon the detaining authority to give adequate information regarding identity of militants/terrorists, with whom the detenue was

alleged to have associated to indulge in subversive activities. 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 right of the detenue to make a representation against his detention are

taken to have been violated. 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, challenge to order No. 56/DMS/PSA/2011 dated 28.10.2011, of District Magistrate, Shopian 'respondent No. 2 herein, whereby

one Shri Nazir Ahmad Pathan son of Alim Din Pathan resident of Devpora Tehsil and District Shopian (herein after referred to as 'detenue') has

been placed under preventive detention, must succeed for the reasons discussed above.

The petition is allowed and detention order No. 56/DMS/PSA/2011 dated 28.10.2011, passed by the District Magistrate, Shopian ' respondent

No. 2, directing detention of Nazir Ahmad Pathan son of Alim Din Pathan resident of Devpora Tehsil and District Shopian, quashed.

The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 56/DMS/PSA/2011

dated 28.10.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No.

56/DMS/PSA/2011 dated 28.10.2011.

Disposed of