Syed Imtiyaz Hyder vs State Of Jammu & Kashmir And Others

Tashi Rabstan, J

Impugned in this petition is the Order no.DMB/PSA/06 of 2019 dated 16.03.2019, passed by District Magistrate, Budgam (for brevity “detaining

authorityâ€) directing preventive detention of the person of Shri Syed Imtiyaz Hyder @ Hyder son of Late Syed Hyder Shah resident of Gojra,

Budgam, (for short “detenuâ€​), on the grounds tailored in petition on hand.

Respondent no.2 has filed counter affidavit in opposition to the petition and strenuously resisted the petition.

Heard learned counsel for the parties at length and considered the matter.

First and foremost, impugned detention order and grounds of detention make mention of material record such as dossier and other connecting

documents relied upon by detaining authority while making impugned detention order. Detention order and grounds of detention also make reference to

a communication received from Senior Superintendent of Police, Budgam. What detaining authority (respondent no.2) has stated in Ground (b) of

counter affidavit filed in opposition to writ petition on hand, is worth to be noticed:

“b. That whatever material was required to be furnished to the detenue, same stands furnished to him in the form of ground of detentionâ€​

From the above quoted passage of Ground (b) of counter affidavit, it is quite intriguing that detaining authority admits that only grounds of detention

were served upon detenu. Thus, other connecting material, like FIRs, dossier, statements recorded under Section 161 Cr.P.C. and incriminating

material, if any, collected during investigation of the case(s), heavily relied upon by detaining authority while passing impugned detention order,

has/have not been supplied to detenu so as to enable him to make an effective representation against detention order. In that view of matter,

Constitutional and Statutory rights guaranteed to detenu have been grossly violated by detaining authority. Non-compliance of this imperative

procedure and obligation has vitiated detention order.

It needs no emphasis that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article

22 (5) of the Constitution of India and Section 13 of J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is

supplied to him. It is only after detenu has all said material available that he can make an effort to convince detaining authority and thereafter

Government that their apprehension qua activities ascribed to him, are baseless and misplaced. If detenu 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. Failure on part of detaining authority to

supply material relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. While saying so, I draw

support from Dhannajoy Dass v. District Magistrate, AIR 1982 SC 1315; Sofia Ghulam Mohammad Bam v. State of Maharashtra & ors, AIR 1999

SC 3051; Union of India v. Ranu Bhandari, 2008 Cr. L. J. 4567; Syed Aasiya Indrabi v. State of J&K & ors., S.L.J. 2009 (I) 219; andT hahira Haris

v. State and ors, AIR 2009 SC 2184.

One more facet of the matter that requires to be glimpsed and considered, is that the last FIR, bearing FIR no.96/2017, has been lodged on

03.05.2017 in police station Budgam, that has been relied upon by detaining authority so as to place detenu under preventive detention. Insofar as

impugned detention order is concerned, the same has been passed on 16.03.2019. Thus, impugned detention order has been passed after, little less,

three years, which according to learned counsel for petitioner is impermissible in view of law laid down by the Supreme Court in Rajinder Arora v.

Union of India, (2006) 4 SCC 796. The Supreme Court has laid emphasis on the dictum that where there is unsatisfactory and unexplained delay

between the date of order of detention and the date of prejudicial activity, such a delay would throw considerable doubt on the genuineness of

subjective satisfaction of the detaining authority leading to a legitimate inference that detaining authority has not really and genuinely satisfied itself vis-

à -vis necessity for detaining detenu with a view to preventing him from acting in a prejudicial manner. Same is true about present case. Last FIR,

bearing FIR no.96/2017, as is discernible from grounds of detention, has been lodged on 03.05.2017 and impugned detention order has been issued by

respondent no.2 on 16.03.2019. In the interregnum, there is no activity shown attributable to detenu.

The apprehension nursed by detaining authority as regards mobilizing youth to disrupt Parliamentary Elections, does no more surviving owing to the

fact that the same is already over.

It may not be out of place to mention here that preventive detention law makes room for detention of a person without a formal charge and without

trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse

the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot

engage a lawyer to represent him before the detaining authority. In the said milieu, it is of utmost importance that whatever procedural safeguards are

guaranteed to detenu by the Constitution, preventive detention law should be strictly followed. Right to liberty guaranteed by Article 21 implies that

before a person is imprisoned, a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman

would not be able to properly defend himself except through a lawyer. Significance of a lawyer to enable a person to appropriately defend himself has

been sumptuously explicated by the Supreme Court in A.S. Mohd. Rafi v. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali v. State of Assam,

JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932) “Even the

intelligent and educated layman has small and sometimes no skill in the science of lawâ€, and hence, without a lawyer he may be convicted though he

is innocent. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice.

But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the

power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters,

after long, arduous, historical struggles, will become nugatory. In State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 61,3

the Supreme Court observed:

“...Personal liberty is a precious right. So, did the Founding Fathers believe because, while their first object was to give unto the people a

Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is

why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of

fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against

executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a

lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample

upon human rights which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the

Government we fought forâ€. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from

without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982)

1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54.â€​

The Constitution Bench of the Supreme Court in M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212, observed:

“It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any

Constitution by reason of the basic fact that they are members of the human race.â€​

The Nine Judge Constitution Bench of the Supreme Court in I.R. Coelho (dead) By LRs. v. State of T.N., (2007) 2 SCC 1, observed:

“It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution..... Fundamental

rights occupy a unique place in the lives of civilized societies and have been described in judgments as & “transcendentalâ€, & inalienable, and

primordialâ€​.

In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in

the lead role in nefarious activities, which are hazardous to the sovereignty and integrity of the country and has been creating law and order problem in

the area of Anantnag and its adjacent areas and in order to accomplish antisocial agency. And in this connection, various criminal cases are already

going on against detenu under various provisions of Ranbir Penal Code and if he is found guilty, he will be convicted and given appropriate sentence.

Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking

recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating

authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an

instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262, while

emphasising need to adhere to procedural safeguards, 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 suspicionâ€, 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.â€​

The history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of

the right to move the Court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right

is of great importance. Personal liberty protected under Article 21, is so sacrosanct and so high in the scale of constitutional values that it is the

obligation of detaining authority to show that impugned detention meticulously accords with the procedure established by law. However, the

constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security, public order, disruption of

national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In a case of preventive

detention, no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal

conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable

activities. But at the same time, when a person's greatest of human freedoms, i.e. personal liberty, is deprived, the laws of preventive detention are

required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, has to be mandatorily made.

Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors, (1975) 3 SCC 198; Union of India v. Paul Manickam & anr,

(2003) 8 SCC 342; Rajinder Arora v. Union of India (2006) 4 SCC 796; Powanammal v. State of Tamil Nadu and anr., AIR 1999 SC 618; G. M.

Shah v. State of J&K, (1980) 1 SCC 132; Talib Hussain v. State of J&K & ors, 2009 (II) SLJ 849; Nissar Ahmad Bhat v. State & ors, 2014 (III) SLJ

1047; Shahmali v. State & ors, 2010 (1) SLJ 56; Dilawar Magray v. State of J&K & ors, 2010 (II) SLJ 696; and Sajad Ahmad Khan v. State & ors,

2010 (II) SLJ 743.

It is worthwhile to mention here that preventive detention is not a quick alternative to normal legal process, is the dictum of the Supreme Court in

V. Shantha v. State of Telangana and others, AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after

branding him a ‘goonda’ merely because the normal legal process is ineffective and time-consuming in ‘curbing the evil he spreads’, is

illegal and that detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient

remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to

normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial

activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of

the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to

attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws

would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of

offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of

investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in

perpetual custody without trial. My views are fortified by the judgements rendered in the cases of Rekha’s and V. Shantha (supra) as also in

Sama Aruna v. State of Telengana AIR 2017 SC 2662.

Based on the above discussion, the petition is disposed of and detention Order no.DMB/PSA/06 of 2019 dated 16.03.2019, issued by Deputy

Commissioner, Budgam, is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any

other case. Disposed of.

Detention record be returned to learned counsel for respondents.