Zubair Ahmad Malik vs State of Jammu & Kashmir and Others

Tashi Rabstan, J.—One Shri Zubair Ahmad Malik @ Tipu son of Gh. Mohidin Malik resident of Batpora Mumkak, Sopore District

Baramulla (hereinafter referred to as detenu) has approached this Court seeking quashment of Order No. 02/DMB/PSA/2013 dated 2nd May

2013, passed by District Magistrate, Baramulla (for short detaining authority) whereby detenu was ordered to be detained u/s 8 of Jammu and

Kashmir Public Safety Act, 1978, on various grounds. The Detaining Authority and the State Government were given several opportunities to

respond to the motion. They have, however, opted not to file any response to the petition.

Detention record, however, has been made available by learned Deputy Advocate General.

Heard learned counsel for the parties at length and considered their submissions and have gone through the record.

Preventive detention as held in A.K. Gopalan Vs. The State of Madras, 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 arduous, 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 detenu 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 Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, 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 detenu.

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 detenu 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.

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

detenu is made aware of and furnished all the material that weighed with the detaining authority while making detention order. In the present case

the Detention order makes mention of the material record such as dossier and other connecting documents relied upon by the Detaining Authority

while making detention order. The detention order makes mention of material record such as dossier and other connected documents, relied upon

by Detaining Authority, while making the detention order. The detention order also makes reference to a letter No. PROSS/PSA/2013/5362

dated 01.04.2013, received from Superintendent of Police, Sopore. The detention record, made available by learned Deputy Advocate General,

does not convincingly establish that all the documents referred to in the detention order were supplied to detenu. The endorsement on the overleaf

of detention order made by the Executing Officer PSI Iftikhar Ahmad, No. 115585/ARP P/S Sopore, at the time of execution of detention order,

does not make a reference to the documents in question and does not record that such documents were supplied to detenu at the time of execution

of detention order or immediately thereafter. The grounds of detention make reference to case - FIR No. 172/2012 u/s 7/25 Arms Act P/S

Sopore, to have been registered against the detenu. The involvement of detenu in the aforementioned case appears to have weighed with detaining

authority, while making detention order. The record does not indicate that copies of aforementioned First Information Report, statements recorded

u/s 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case, were ever supplied to the detenu. The above

mentioned material, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenu 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 detenu. It is only after the detenu has

all said material available that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehension

concerning activities of detenu are baseless and misplaced. If the detenu is not supplied material, on which the 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 the Detaining Authority to supply the

material relied at the time of making detention order to the detenu, renders detention order illegal and unsustainable. While holding so, reference

may be made to law laid down in Thahira Haris etc. Vs. Government of Karnataka and Others, Union of India (UOI) Vs. Ranu Bhandari,

Dhananjoy Das Vs. District Magistrate, Darrang and Another, Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, and Syed

Aasiya Indrabi v. State of J & K & Ors. [2009 (I) S.L.J. 219].

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 the detenu 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 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 the detenu is alleged to have been playing vital role in transportation of militants, carrying of

money and arms, ammunition from one place to another. The detenu has not been given the particulars of militants, whom he is alleged to have

been transporting. It was incumbent upon the detaining authority to give adequate information regarding identity of militants, with whom the detenu

was alleged to have associated to indulge in subversive activities. The detenu, 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 detenu 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 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 Vs. Santosh Shankar Acharya, Chaju Ram Vs.

The State of Jammu and Kashmir, ; Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, ; Mohd. Yousuf Rather Vs. State of Jammu

and Kashmir and Others, ; and Ghulam Nabi Shah Vs. State of Jammu & Kashmir and Others,

For the aforestated facts, reasons and the law, the petition is allowed and detention order No. 02/DMB/PSA/2013 dated 2nd May 2013,

passed by District Magistrate, Baramulla respondent No. 2, directing detention of Shri Zubair Ahmad Malik @ Tipu son of Gh. Mohidin Malik

resident of Batpora Mumkak, Sopore District Baramulla, quashed. The respondents, in view of quashment of detention order, are stripped of any

authority to detain the detenu under order No. 02/DMB/PSA/2013 dated 2nd May 2013. Resultantly, the respondents are directed to release the

detenu from preventive detention, ordered vide order No. 02/DMB/PSA/2013 dated 2nd May 2013.

Disposed of. Detention record be returned to the counsel for respondents.