Peer Mohammad Ashraf vs State and Others

Mohammad Yaqoob Mir, J.—In pursuance to order No. 76/DMA/PSA/DET/2012 dated 3-10-2012, detenue, Peer Mohammad Ashraf,

has been taken into preventive custody by invoking powers u/s 8 of the J. & K. Public Safety Act as his activities were found to be prejudicial to

the ""Security of the State"" and ""maintenance of public order"" so has been lodged in Central Jail, Kathua. By the instant petition, quashment of the

said order is sought on various grounds. Despite opportunities respondents have neither filed counter-affidavit nor produced detention records.

It is the contention of learned counsel for the petitioner that in the impugned order of detention it is recorded that the District Magistrate was

satisfied to prevent the detenue from acting in any manner prejudicial to the ""security of the State"" and ""maintenance of public order"". In the

grounds of detention, it is recorded that in case detenue is released, he will indulge in the activities, which are prejudicial to the security of the State

and public order. Finally in the grounds of detention it has been concluded as under:--

Therefore, it is clear that your activities are highly pre-judicial to the security of the State and maintenance of public order and warrants immediate

preventive measures to be taken against you.

The District Magistrate has not been himself certain as to whether activities of the detenue are threat to the ""maintenance of public order"" or

security of the State"". The said position suggests that the detaining authority has not applied its mind while passing the order of detention. Learned

counsel has relied on the judgment captioned G.M. Shah Vs. State of Jammu and Kashmir, of the judgment is relevant to be quoted:

As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, 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 Vs. Arif Ali and Others, and Shri

Satya Brata Ghose Vs. Mr. Arif Ali, District Magistrate, Sibasagar, Jorhat and Others,

Next learned counsel for the petitioner would contend that the material forming base for the grounds of detention, such as dossier and other

connecting documents as reflected in the order of detention, have not been supplied to the detenue, therefore, has been deprived of making an

effective representation against the order of detention. The right guaranteed under Article 22(5) of the Constitution of India, as such, is infringed.

Past history and activities of the detenue have been narrated in the grounds of detention but reference to the documents in the grounds of

detention would suggest that it was imperative for the detaining authority to furnish copies of the documents so referred in the grounds of detention

to the detenue. Infringement of such right to represent against the order of detention as guaranteed under Article 22(5) of the Constitution would

render the order of detention as illegal.

Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3)(b) of the Constitution, which is an

exception to Article 21 of the Constitution. The said exception authorises the concerned authorities to pass preventive detention but while passing

such orders, the authority concerned is required to be alive to the personal liberty of a person and such power shall be exercised in a manner which

may not have the trappings of depriving a person of the guaranteed liberty. In short an exceptional case has to be made out for passing the

preventive order but while doing so procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the

detenue to claim that he has been prejudiced as his liberty has been curtailed dehors the law. In this connection it shall be quite relevant to quote

paras 37 and 38 (paras 43 and 44 of AIR) of the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case

captioned Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another,

As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another,

5..... The procedural requirements are the only safeguards available to 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.

As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Antifascist Refugee Committee v. McGrath: (US p. 179)

..... It is procedure that spells much of the Difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural

safeguards are the main assurance that there will be equal justice under law.

Procedural rights are not based on sentimental concerns for the detenue. The procedural safeguards are not devised to coddle criminals or

provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that

the authorities will behave properly within rules distilled from long centuries of concrete experience.

In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention

impugned does not sustain.

For the aforestated reasons, the order of detention impugned is quashed, detenue is directed to be released from the preventive custody

provided he is not required in connection with any other case. Disposed of as above.