Shabir Ahmad Zargar vs State and Others

Gh. Hasnain Massodi, J.—Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the constitution has

provided against the improper exercise of the power must be jealously watched and forced by the Court"", the Supreme Court observed in Dr.

Ram Krishan Bhardwaj Vs. The State of Delhi and Others, . The principle of law has been reiterated thereafter in a number of authoritative judicial

pronouncement by Supreme Court and the High Courts. The Supreme Court in Dhananjoy Das Vs. District Magistrate, Darrang and Another, has

spelt out the safeguards provided under the constitution in case of preventive detention, in following words;

The law is by now well settled that the detenue has two rights under Article 22(5) of the constitution: (1) to be informed, as soon as maybe of the

grounds on which the order of detention is made, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to

be afforded the earliest opportunity to making representation against the order of detention, that is to be furnished with sufficient particulars to

enable him to make representation which on being considered may obtain relief to him....

The Petitioners grievance is that the Respondent No. 2 while ordering preventive detention of Sh. Shabir Ahmad Zargar Son of Ghulam Rasool

Zargar Resident of New Colony Soura Srinagar, (hereinafter referred to as detenue) vide order No. DMS/PSA/48/2009 dated 20th October

2009 has not followed and adhered to the procedural safeguards mandated by the Constitution and Jammu and Kashmir Public Safety Act 1978,

(herein after referred to as Act).

I have gone through the Habeas Corpus petition, the Counter Affidavit filed by the Respondent No. 2 as also detention record submitted by

Learned Additional Advocate General.

The petition is destined to succeed on the following grounds:

(I) The grounds of detention are vague, depriving the detenue of the right to make an effective representation against his detention- a right

guaranteed under Article 22(5) of the Constitution of India and Section 13 (1) of the Act. The grounds of detention (Annexure P-l) after detailing

the alleged secessionist activities of the detenue since his childhood, that prompted the District Magistrate Srinagar to issue successive detention

orders the last of which was revoked, details immediate ground for slapping preventive detention on the detenue vide order impugned in the

petition as under;-

Report received from reliable sources indicate that you are preparing ground for launching a fresh phase of strikes and in this connection you have

been found motivating the released militants and other cadres of different secessionist and terrorist outfits for organizing the illegal strikes as and

when the final decision regarding the same is taken. You hail from Soura and wield a considerable clout in secessionist/terrorist circles in

downtown city, where you are presently concentrating mobilize your contacts for carrying out the secessionist agenda which is aimed at achieving

the session of the State of Jammu and Kashmir from Union of India. You have put your cadres in a state or readiness for launching the agitation to

disturb the public order and create hurdles for the administrative machinery. A particular faction of Hurriyat Conference has already hinted at

launching the agitation in near future and you have been assigned a very important role in the scheme of things chalked out by the said secessionist

group"". The ground extracted above that voices the apprehension that the detenue was ""preparing ground for launching a fresh phase of strikes

and that the detenue to accomplish the suspected designs was ""motivating the released militants and other cadres of different secessionist and

terrorist outfits"". The ground of detention does not give particulars of ""released militants"" and ""other cadres"" who have been approached by the

detenue. The detenue is said to have put his ""cadres"" in a state readiness. The ""cadres"" are not identified in the grounds of detention nor is it stated

with sufficient clarity as to who has ""hinted at launching the agitation"" or who has assigned ""very important role"" to the detenue or what role has

been assigned to the detenue. In absence of all these details the detenue can not be said to have been in a position to make an effective and

meaningful representation, envisioned under the Constitution of India and the Act. The Respondents in effect have violated detenue's constitutional

and statutory rights. It needs no emphasis that even if one amongst various grounds relied upon by the detaining authority to arrive at subjective

satisfaction that the detenue is required to be placed under preventive detention to prevent the detenue from acting in any manner prejudicial to the

security of the State or the maintenance of public order, is vague the right of the detenue to make representation against his detention is violated.

Reference in this regard may be made to law laid down in Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, and the latest judgment

of this Court reported in Syed Aasiya Indrabi v. State of J&K and Ors. (1) SLJ 219.

It is pertinent to point out that as per the grounds of detention (Annexure P-l) placed on the file, the detenue was previously put under preventive

detention vide order No. DMS/PSA/96 dated 31.1.2003. The detention order was quashed by this Court, the detenue was thereafter again

detained under the Act, vide No: DMS/PSA/02 dated 17.5.2005. The aforesaid detention order was revoked by the Government vide order No.

Home/PSA/2094/05 dated 2nd August 2005. The detenue was thereafter arrested in connection with case FIR 155/1990 of Police Station Soura

and lodged in Central Jail Srinagar as under-trial. The detenue was bailed out on 15.11.2006 but immediately re-arrested on 16.11.2006 in case

FIIR 123 of 1990 Police Station M.R. Gunj.

(II) That though the Respondent No. 2-detaining authority in the impugned detention order made mention of ""material record"" and ""other

connecting documents"" that according to Respondent No. 2 was gone through and relied upon to record satisfaction that the detenue was required

to be put under preventive detention, so as to prevent the detenue from acting in any manner prejudicial to the maintenance of the security of the

State, the ""material record"" and other ""connecting documents"" that find mention in the detention order were not supplied to the detenue. A

reference in the detention order is made to FIR 45, but the detention record does not reveal that copies of aforesaid FIR's 45/90 u/s 302 P/S

Nowhatta have been furnished to the detenue.

It is constitutional obligation of the detaining authority to provide the material that was considered by it to arrive at a conclusion that preventive

detention of the detenue was warranted u/s 8 of the Act, to the detenue so that detenue is in a position to exercise his right of making a

representation against the detention order. The detaining authority having failed to provide the aforesaid material to the detenue, the detenue's right

of making representation against his preventive detention guaranteed under Article 22 of the constitution of India and Jammu and Kashmir Public

Safety Act, 1978 is violated. A reference in this regard may be made to Dhananjoy Das Vs. District Magistrate, Darrang and Another, , Sophia

Gulam Mohd. Bham Vs. State of Maharashtra and Others, and Union of India (UOI) Vs. Ranu Bhandari, .

(III) The Respondent No. 2 did not inform the detenue that the detenue may file a representation before the Respondent No. 2 during the period

of 12 days the detention order was to stay in force independent of his right to file a representation to the Government guaranteed under Article 22

(5) and Section 13 (1) of the Act. It is well settled law that the detaining authority is required to inform the detenue of his right to submit a

representation even to the detaining authority. Reference in this regard may be made to State of Maharashtra and Others Vs. Santosh Shankar

Acharya, .

The petition is accordingly allowed, and the detention order for the reason discussed, is quashed. Resultantly the detenue namely Shabir Ahmad

Zargar Son of Ghulam Rasool Zargar Resident of New Colony Soura Srinagar, is directed to be released forthwith, unless the detenue is involved

in any other case justifying his custody/detention.