Zahid Ahmad Nengroo vs State of J&K, & Anr.

One Zahid Ahmad Nengroo son of Mohammad Yousuf Nengro resident of Tuli Nowpora District Kulgam(for brevity ""detenu"") seeks

quashment of Order No.39/DMK/PSA/16 dated 29th October 2016, passed by District Magistrate, Kulgam (for short ""detaining authority"")

whereby detenu was ordered to be detained under Section 8 of Jammu and Kashmir Public Safety Act, 1978, on the grounds detailed in petition.

Respondents have filed their counter and resisted the petition.

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

Respondent No.2 has intriguingly mentioned that in impugned detention order that ""on the basis of grounds of detention placed before"" him by

the Superintendent of Police, Kulgam, detenu is placed under preventive detention from acting in any manner prejudicial to the maintenance of

peace and public order. It is pertinent to mention here that detaining authority may get inputs from different agencies, including Superintendent of

Police of the concerned District, responsibility to prepare and formulate grounds of detention, however, always rests with Detaining Authority. It is

detaining authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such

perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is, thus, for detaining authority to prepare

and formulate grounds of detention and satisfy itself that grounds of detention, so formulated, warrant passing of preventive detention. The

detention order, for the said reason, exhibits total non-application of mind by detaining authority. The detention order is liable to be quashed on this

ground alone.

It is may not be out of place to mention here that preventive detention as held in A.K. Gopalan v. State of Madras [1950 SCR 88] and

reiterated in Rekha v. 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 Panel 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.

In Kamleshwar Ishwar Prasad Patel v. Union of India and Others (1995) 2 SCC 51 the Supreme court 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.

Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and another [(1987) 2 SCC

22] 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, first and foremost task before the Court is to see whether procedural safeguards, guaranteed under Article 22(5)

Constitution of India and Preventive Detention Law pressed into service to slap detention, are adhered to.

Constitutional and Statutory safeguards, guaranteed to a person detained under preventive detention law, are meaningless unless and until detenu

is made aware of and furnished all material that weighed with detaining authority while making detention order. Grounds of detention make

reference to case ​ FIR No.239/2016 under Section 147, 148, 149, 307, 336 RPC P/S Kulgam, to have been registered against detenu. The

involvement of detenu in the aforementioned case appears to have weighed with detaining authority while making detention order. The grounds of

detention does not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other

material collected in connection with investigation of aforesaid case were ever supplied to detenu. The material, mentioned above, thus assumes

significance in the facts and circumstances of the case. 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 detenu. It is only after detenu has all said material available, that

detenu can make an effort to convince detaining authority and thereafter Government, that their apprehensions as regards activities of the detenu

are baseless and misplaced. If detenu is not supplied material, on which detention order is based, detenu 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 holding so, I draw support from Dhannajoy Dass v. District Magistrate

(AIR 1982 SC 1315); Sofia Ghulam Mohammad Bam v. State of Maharashtra and Others (AIR 1999 SC 3051); Union of India v. Ranu

Bhandari (2008, Cr. L. J. 4567); Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris v. State

and Others (AIR 2009 Supreme Court 2184).

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 detenu, on whom preventive detention order is slapped, is

held in custody without a formal charge and trial. The detenu 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 detenu earliest opportunity of making an effective and meaningful representation against his detention.

The object is to enable detenu to convince 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 detenu meaningful, it is

necessary that detenu 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 detenu cannot be expected to make a representation against

his detention. The grounds of detention mention that some miscreants led by detenu along with his other associates pelted stones upon police party

and that mob, besides pelting stones attacked patrolling party with lathies. The detenu has not been given particulars of associates, whom he is

alleged to have been pelting stones upon police party. It was incumbent upon detaining authority to give adequate information regarding identity of

associates and miscreants, with whom the detenu was alleged to have associated to indulge activities that are great threat for maintenance of peace

and public order. The detenu, only after getting said information, would have been in a position to explain his stand and make an effort to convince

competent authority that his preventive detention was unwarranted. These are only few instances to illustrate that grounds of detention are vague

and ambiguous and bound to keep detenu guessing about what really was intended to be conveyed by 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 detenu to make a representation against his detention are taken to have been violated. Reference in this regard may be made to State of

Maharashtra and others v. Santosh Shankar Acharya [AIR 2000 SC 2504]; Chaju Ram v. State of J&K [AIR 1971 SC 263]; Dr.Ram Krishan

v. The State of Delhi & ors. [AIR 1953 SC 318]; Mohd Yousuf Rather Versus State of J&K [AIR 1979 SC 1925]; and Ghulam Nabi Shah v.

State of J&K & others [2005(I) SLJ 251].

For the afore-stated reasons, petition is allowed and detention Order No.39/DMK/PSA/16 dated 29th October 2016, passed by District

Magistrate, Kulgam ​ respondent No. 2, directing detention of Shri Zahid Ahmad Nengroo son of Mohammad Yousuf Nengroo resident of Tuli

Nowpora District Kulgam, quashed.The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenu

under preventive detention. Resultantly, respondents are directed to release the detenu from preventive detention, ordered vide Order

No.39/DMK/PSA/16 dated 29th October 2016.

Disposed of.