Jammu & Kashmir High Court - Srinagar Bench
Syed Asiya Andrabi vs State And Others. After Being ... on 25 August, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No. 257 of 2011 IA No. 87 of 2011 Syed Asiya Andrabi Petitioners State and others Respondents !Mr. M. A. Qayoom, Advocate ^Mr. M. A. Thakur, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 25/08/2011 :J U D G M E N T:
The detention order No.DMS/PSA/12/2011 dated 20th June 2011, impugned in the present petition, is third in a row within a short span of nine months slapped by District Magistrate, Srinagar respondent No.2 herein, on Syed Asiya Andrabi wife of Ashaq Hussain Faktoo resident of Soura, Srinagar (herein after referred to as detenue). The earlier two detention orders viz. detention order No.DMS/PSA/64/2010 dated 01.09.2010 and No.DMS/PSA/01/2011 dated 07.04.2011, were quashed vide judgements dated 24.03.2011 and 19.05.2011 in HCP No.244/2010 and No.160/2011, and the respondents instead of releasing the detenue from custody, issued another detention order on 20th June 2011. The detenue has thus been in custody since 28th August 2010 when she was arrested by Police Station Nageen at Habak in connection with case FIR No.34/2006 P/S Nageen and remanded to police custody, unmindful of her having been admitted to bail in the aforesaid case by 3rd Additional Sessions Judge, Srinagar.
The first and foremost ground urged in the instant petition to assail the detention order is that the grounds of detention pressed into service to place the detenue under preventive detention, are identical to the grounds of detention in support of detention order No.DMS/PSA/ 01/2011 dated 07.04.2011, quashed vide judgement dated 19.05.2011 and even identical to the detention order passed against the detenue therebefore and quashed vide judgement dated 24.03.2011.
In order to appreciate the argument advanced by learned counsel for petitioner in right perspective, it would be advantageous to extract hereunder grounds of detention made use of by respondent No.2, (with identical portions highlighted) to slap three successive detention orders, one after other, on the detenue:
Detention order dated 01.09.2010 You are a self-styled chairperson of Dukhtarani-Milat, a women secessionist outfit, operating for the secession of state of J&K from the union of India. In the recent time, you have emerged as one of the leading secessionist voices propagating and implementing the ideology of Hurriyat Conference (G) group, which is primarily secessionist in nature. You are a staunch advocate of secession of the state of J&K from the union of India and its annexation with Pakistan. The activities being carried out by you are aimed at achieving this objective, thereby having a direct bearing upon the maintenance of security of the state.
With the inception of militancy in the state in the year 1989, you voluntarily developed contacts with various secessionist and terrorist elements and in pursuance to a well planned conspiracy hatched between some local secessionist elements and some sitting across the border, you founded Dukhtarani Milat, a women secessionist outfit with a pro-Pakistan ideology. Since then you have been carrying out various illegal activities which has led to the registration of a number of criminal cases against you, the details of which are given below:
* Case FIR No 50/2002 u/s 120-B, r/w 3,6 and 22 POTA P/s Khanyar. * Case FIR No.209/2005 u/s 148,452,342,354,506,307 RPC P/s Sadder. * Case FIR No. 180/2005 u/s 341,452,427,RPC P/s R.M Bagh. * Case FIR No.34/2006 u/s 10,13 UL Act, 153-A RPC P/s Nigeen * Case FIR No. 44/2006 u/s 188,336,341 RPC P/s Kothibagh. * Case FIR No. 21/2007 u/s 435,452,395,336,427,147,148 RPC P/s Shergari.
* Case FIR No. 175/2008 u/s 336,148 RPC ,13 ULA P/s Parimpora * Case FIR No. 57/2009 u/s 3/25 A Act P/s Nowhatta. * Case FIR No. 157/2009 u/s 120,121 B, 153,121 RPC ,13 ULA Act P/s Shaheed Gunj. * Case FIR No. 93/2010 u/s 13 ULA Act P/s Safakadal.
You have undertaken various activities at different times but all along the objective has remained the same i.e. the secession of state of J&K from the union of India. These activities include the campaign launched against cyber cafes, restaurants, beauty parlours etc. You have been undertaking these types of activities to create social acceptability for your objective.
Under the banner of Dakhtarani Milat you have been able to gather a few women activists who assist you in carrying out various secessionist activities, but you have maintained a continuous media presence by issuing highly provocative statements and taking a very rigid posture so far as your secessionist ideology is concerned. Your activities have been found to be highly instigative when it comes to implementing the illegal programmes of secessionists on the ground like enforcing the strikes, taking out processions and attacking cyber cafes, beauty parlours, etc. In recent years since 2008, you have emerged as one of the prominent secessionist elements in the valley and have also become an important component of Hurriyat Conference (G) group which has been spearheading the agitations being carried out in support of secessionism. For indulging in such activities you have been arrested, proceeded against under normal law and detained under PSA on several occasions but that has not deterred you from indulging in such activities. The last time you were arrested on 12.09.2009 and were subsequently detained under PSA in terms of detention order issued by this office vide order no. DMS/PSA/40/2009 dated 14.09.2009 for indulging in activities prejudicial to the maintenance of security of state. However, the detention warrant was revoked in terms of government order no. Home(PB- V)1740/2009 dated 20.09.2009 and you were accordingly released.
Immediately after your release, you recycled into secessionist activities and thereafter indulging in highly objectionable activities aimed at seceding the state of J&K from the union of India and destabilizing the administrative machinery. During this period, you developed very close contacts with the decision makers in Hurriyat Conference (G) group and together you launched a vicious media campaign followed by a prolonged violent agitation. The agitational programme is so designed that it instigates the youth to resort to stone pelting and forces the general public to observe strikes. Besides educational institutions get closed and business activities get stalled. It also brings the general public in confrontation with the security apparatus and creates a surcharged atmosphere. The programmes which have been appearing in the shape of calendars are being devised by a decision making body of Hurriyat Conference (G) group, of which you are an important member. In this phase the chairman of Hurriyat Conference (G) group was arrested on 26.6.2010 and in his absence the mantle of leading the protests was, among others, taken over by you. It may not be out of place to mention here that the present prolonged agitation has already consumed several human lives besides destroying property worth crores. The enquiries and investigations conducted in various cases of violence have indicated that you r activities have been one of the sources of instigation for the protestors. You have been issuing regular statements through the media justifying stone pelting and giving a moral support to the pelters. A gist of press statements issued by you after your release and during the ongoing violent protests is given below:
==> On 19-3-2010 a news item attributed to you appeared in the daily Aftab wherein you falsely accused the government of violating the human rights and use of force and criticized the government for such acts ==> On 26-3-2010 , you issued a statement which appeared in the Daily Rising Kashmir and the Daily Srinagar Times of 27-3-2010 wherein you dobbed the educational tour organized for the youth of Anantnag District as a gimmick of the government which was meant to crush the resistance movement . You have been issuing such statements just to malign the image of the government and to spread hatred against the government ==> On 23.4.2010, you issued a statement which appeared in the Daily Itlaat , wherein you leveled false accusation upon the government machinery of implicating the accused persons who are convicted by the Delhi Court for carrying out blasts in Lajpat Nagar ==> You have been misusing every available opportunity to malign the image of India and the state administration on one pretext or the other. On 2.5.2010 , you issued a statement which appeared in the Daily Kashmir Times on 3.5.2010 , wherein you criticized the mainstream political parties of promoting obscenity and vulgarity in the society , though there was no such reason for the accusation ==> On 5.5.2010,you issued another statement which appeared in all the Daily Newspapers of the valley like Daily Srinagar Times, Daily Aftab ,Daily Rising Kashmir and Greater Kashmir , wherein , you resorted to highly anti national remarks and tried to spread hatred among the masses against the union of India and simultaneously starting a negative campaign against the proposed Indo-Pak Dialogue ==> On 9-5-2010 , news appeared in the Daily Kashmir UZMA, wherein you asked the people to observe a complete strike on 10-5-2010 because as per you version the judiciary has failed , jail inmates are being discriminated and police is not obeying the judicial orders. All these were in fact unfounded allegations aimed at garnering the support for secessionist ideology ==> On 20.5.2010 a news item attributed to you appeared in the Daily Kashmir Uzma , wherein reportedly you criticized the government for detaining another secessionist namely Masrat Aalam Bhat and in the same breath you glorified the youth who lay their lives for the so called Kashmir cause.
==> On 20-5-2010 while commenting upon the reservation bill, you alleged that it was an effort to change the demography of Kashmir and that the decision had been deliberately taken by the government to demolish the Muslim character of Jammu and Kashmir . You further asked the people to resist the decision of the government the way they did in the year 2008 against the transfer of land ==> On 23.5.2010, you visited Shopian and addressed a women congregation at Jamia Masjid Shopian. In your address, as usual you targeted the government by accusing it of patronizing the people involved in the rape and murder of Asiya and Neelofar.You spoke in a highly derogatory language about the security forces and other government agencies. In your speech, you also said that fighting for seceding the state of Jammu and Kashmir from the union of India is like your religious obligation and you will fight for it till your last breath. In your address, you also asked the women to carry knives for saving their honour. The speech was carried in all the news papers of the valley of 24.5.2010 ==> On 27.5.2010 , you issued a press statement wherein you supported the agitation call given by Hurriyat Conference (G) chairman and asked the people to observe complete strike on the eve of the visit of Sonia Gandhi to valley to show to the world that Kashmiris do not accept the acceptation with India ==> On 31.5.2010 , news report appeared in Daily Itlaat and the Daily United Times, attributed to you, wherein you asked the government to withdraw the security forces from Kashmir and ridiculed the ruling national Conference. While commenting upon the anniversary of the Shopian incident you propagated the secessionist ideology and attributed such incidents to the presence of security forces in the Kashmir ==> On 4.6.2010 , you visited Baramullah to condole the demise of the Jamiat-Islami member and while speaking on the occasion you attributed the killings , rapes, enforced disappearances and torture to the security forces and again, as usual , challenged the accession of state of Jammu and Kashmir with the Union of India . The report to this effect appeared in Daily Kashmir Times , Kashmir Monitor and Kashmir convenior dated 5.6.2010 ==> On 6.6.2010 & 7.6.2010 some news items appeared in the Kashmir Uzma and daily Itlaat wherein, you are reported to have justified the violent protests being carried out in various parts of the valley .You also extended your support to the strike call given by APHC (G) group on 7.6.2010 ==> On 13 .6.2010 the Daily Itlaat, Kashmir Uzma and Rising Kashmir carried a news item attributed to you wherein you blamed the J&K Police of resorting to target killing of youth while dealing with law and order situation. In fact this has been your practice to resort to unfounded propaganda to malign the working of the state administration. ==> On 15.6.2010 the daily Kashmir Times, the daily Rising Kashmir, the daily Kashmir Monitor and the daily Aftaab carried a news items attributed to you wherein you were reported that the Indian forces are carrying out genocide in Kashmir. In the same statement you levelled false allegations against the government.
==> On 21.6.2010 your statement appeared in Daily Itlaat, Greater Kashmir and Kashmir Uzma wherein you accused the Indian forces to resorting to genocide and killing the youth intentionally.
==> During the last week of June 2010 Hurriyat Conference (G) group of which you are also a member launched Quit Kashmir Campaign and announced a calendar of agitational programme, which in fact is going on till date. While expressing your support to the programme, you accused the Indian forces of getting the innocent children and old killed through its agents. You also stated that India has taken illegal possession of our natural resources.
Since then you have been issuing regular press statements expressing support to the ongoing violent agitation, whether it is the shut down, the sit in or the protests you have been supporting it unconditionally. It has been observed that elements like you have adopted such a policy of conducting themselves in public as well as in media, so as to instigate the youth to resort to violence, destroy public property, stop business/educational activities, disrupt the supply of essential commodities and endanger the human life. Your role in creating such circumstances is very vital. You are in fact a co-conspirator in creating a surcharged atmosphere to endanger human life because such circumstances suit your brand of pseudo politics.
Some of the statements being issued by you are so provocative that these give a direct instigation to the gullible youth to resort to violence as the same are given in a religious context. One such statement appeared in the daily Srinagar Times and daily Itlaat of 27.6.2010 wherein you asked the people to proceed towards Sopore, lock their houses and protest on roads. The statement was so provocative and instigative that it led to violent protests in various parts of the valley including Qammerwari, Parimpora, HMT, Shikargah, etc. By issuing such statements you have been trying to intimidate the government employees and to create a stalemate between the employees and the government. Such tactics are in fact part of a longer strategy of seceding the state of J&K from the union of India.
The media campaign launched by you is still continuing to support the agitational calendar issued by Hurriyat Conference (G) group. Under this garb you have been found threatening the employees, traders, students and general public to adhere to the programme given by Hurriyat Conference (G) group. Your activities which include the strengthening of Dukhtarani-Millat, motivating the women folk to join this outfit, extending support to the policies of Hurriyat Conference (G) group, are in fact aimed at seceding the state of J&K from the union of India. You are reportedly acting at the behest of the forces inimical to Indian, receiving moral and material support from them. The present on going agitation is part of the same strategy aimed at seceding the state of J&K from the union of India and you are a vital component of the system which instigates this agitation and violence, which have already consumed a number of human lives.
It may be pertinent to mention here that after having gone considerably weak on the militancy front, the secessionist have developed a new strategy of continuing the anti-national activities by instigating the unarmed youth and general public to resort to violence against the security forces and the government establishments. In this regard a vicious campaign have been launched whereby historical facts are distorted, truth is concealed, emotions are raised, the agitation is being projected as a religious service, the general public is threatened, etc. Your role in achieving this objective and creating such circumstances is highly objectionable and very pivotal to the scheme formulated by the secessionists.
Immediately after launching the present violent protests you went underground and used to act very discreetly to fuel the unrest, instigate the youth and at the same time highlight the issue in the media. Efforts were made to effect arrest but you went into hiding. However, the efforts of the police yielded fruit when you were arrested on 28.8.2010 from Malbagh area and were brought under formal arrest in case FIR no. 34/2006 of Police Station Nigeen in which you were required in connection with the investigation of the case. You are presently lodged in Women Police Station Rambagh under proper remand.
Though you are presently under arrest but there is a likelihood of you being admitted to bail and in that eventuality there is a well founded apprehension that you will again indulge in activities prejudicial to the maintenance of security of the state. Normal law which have already been invoked against you on several occasions have not been found sufficient to stop you from indulging in such activities. Moreover the prevailing circumstances are attributed to the instigations given by you and similar other secessionist elements.
Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of the state and warrant immediate preventive measures to be taken against you so as to prevent the society from violence, strikes, economic adversity and social indiscipline.
On the basis of the aforementioned activities, I have reached to the conclusion that it would be expedient to detain you under the provisions of J&K Public Safety Act, 1978, for which orders are being issued separately. Detention order dated 07.04.2011 You have been coming to the adverse notice of police for activities which are highly prejudicial to the maintenance of the security of the State. You believe in the secession of the state of J&K from Union of India and for this ideology you have been actively participating in various activities aimed at achieving this objective.
In the year 1990, the forces inimical to India hatched a conspiracy whereby gullible youth were instigated to indulge in terrorist activities and in order to give it broader outlook, you voluntarily got yourself associated with this conspiracy in order to create an impression that the terrorist activities and its secessionist ideology are being supported by cross section of society including women. With the active connivance and help from anti- national elements you founded Dukhtarani-Milat . You are the self styled chairperson of Dukhtarani- Milat , a women secessionist outfit . Since then at the instance of your mentors, you have been carrying out your activities and trying to give them a colour of social campaigns against social evils. However, time and again you have got exposed and your real intentions have surfaced. A number of criminal cases are registered against you, the details of which are given below:-
> Case FIR No. 50/2002 u/s 120-B r/w 3,6 & 22 POTA P/s Khanyar (Annexure
1) > Case FIR No.209/2005 u/s 148,452,342,354,506,307 RPC P/s Sadder (Annexure2) > Case FIR No.180/2005 u/s 341,452,427 RPC P/s R.M.Bagh(Annexure 3) > Case FIR No.34/2006 u/s 10,13 ULA (P) Act 153-A RPC P/s Nigeen (Annexure 4) > Case FIR No.11/2006 u/s 435,452,395,336,427,147,148 RPC P/s Sheergari (Annexure 5) > Case FIR No.175/2008 u/s 336,148 RPC 13 ULA (P) Act P/s Parimpora (Annexure 6) > Case FIR No.57/2009 u/s 3/25 A. Act P/s Nowhatta (Annexure 7) > Case FIR No.157/2009 u/s 120,121-B ,153,121 RPC 13 ULA (P) Act P/s Shaheed Gunj Srinagar (Annexure 8).
With the passage of time militancy was brought under control and also lost appeal. In order to counter this phenomenon the secessionist elements, including you, devised a new strategy of moulding the violence ridden activities into political activities. For this purpose a number of secessionist outfits and ex- militants assembled and founded All Parties Hurriyat Conference Subsequently this amalgam of secessionist outfits got divided into two fractions i.e Moderates and Hard liners . The later came to be known as All Parties Hurriyat Conference Geelani Group. Because of your ideological compatibility, you got associated with All Parties Hurriyat Conference Geelani Group. Since then with the connivance of other elements of All Parties Hurriyat Conference Geelani Group you have been indulging in highly objectionable activities which have attached various proceedings against you. Be it the agitation in 2008 over the issue of transfer of land to SASB or the agitation of 2009 over the death of two women in shopian or the agitation in 2010 over the alleged killing of youth , you and your other like minded associates have tried to divert it to make it appear as a support to secessionist ideology. As a part of strategy elements, including you, have attempted to achieve their secessionist objectives by disturbing public order. In this regard an exhaustive programme was devised whereby people were instigated to observe strikes, plying of traffic was banned, closure of educational institutions was enforced and gullible youth were instigated to resort to stone pelting. The programme instigated by these elements resulted in large scale of loss of life and property .
You have actively participated in these activities and at the same time launched a vicious media campaign to give amoral support to the perpetrators of violence .A gist of press statement issued by you during the year 2010 are given below:-
> On 19.3.2010 a news item attributed to you appeared in the Daily Aftaab wherein you falsely accused the government of violating human rights with use of force and criticized the government for such acts. Annexure A > On 26.3.2010 you issued a statement which appeared in the Daily Rising Kashmir and the Daily Srinagar Time of 27.3.2010, wherein you dubbed the educational tour organized for the youth of Anantnag District as a gimmick of the government which was meant to crush the resistance movement. You have been issuing such statements just to malign the image of the government and to spread hatred against the government. Annexure B, B-1. > On 23.4.2010 , you issued a statement which appeared in the Daily Itlaat, wherein you leveled false accusation upon the government machinery of implicating the accused persons who were convicted by a Delhi Court for carrying out blasts in Lajpat Nagar .Annexure-C > You have been misusing every available opportunity to malign the image of India and the State administration on one pretext or the other. On 2.5.2010, you issued a statement which appeared in the Daily Kashmir Times of 3.5.2010 , wherein you criticized the mainstream political parties of promoting obscenity and vulgarity in the society , though there was no reason for such accusation . Annexure-D. > On 5.5.2010, you issued another statement which appeared in all the daily news papers of the valley like Daily Srinagar Times, Daily Aftaab, Daily Rising Kashmir and Greater Kashmir , wherein you resorted to highly anti national remarks and tried to spread hatred among the masses against the Union of India and simultaneously starting a negative campaign against the proposed Indo-Pak Dialogue. Annexure-E,E-1,E-2 and E-3.
> On 9.5.2010 , news appeared in the Daily Kashmir Uzma , wherein you asked the people to observe a complete strike on 10-5-2010 because as per your version, the judiciary has failed , jail inmates are being discriminated and police is not obeying the judicial orders, All these were in-fact unfounded allegations aimed at garnering the support for secessionist Ideology. Annexure F. > On 20.5.2010 a news item attributed to you appeared in the Daily Kashmir Uzma , wherein reportedly you criticized the government for detaining another secessionist namely Masrat Aalam Bhat and in the same breath you glorified the youth who lay their lives for the so called Kashmir cause. Annexure-G > On 20.5.2010 , while commenting upon the reservation bill you alleged that it was an effort to change the demography of Kashmir and the decision has been deliberately taken by the government to demolish the Muslim character of Jammu and Kashmir . You further asked the people to resist the decision of the government the way they did in the year 2008 against the transfer of land. Annexure-H. > On 23.5.2010 , you visited Shopian and addressed a women congregation at Jamia Masjid Shopain . In the address, as usual , you targeted the government by accusing it of patronizing the people involved in the rape and murder of Asiya and Neelofar . You spoke in a highly derogatory language about the security forces and other government agencies. In the speech, you also said that fighting for seceding the state of J&K from the Union of India is like your religious obligation and you would fight for it till your last breath. In the address you also asked the women to carry knives for saving their honour. The speech was carried in all the news papers of the valley of 24.5.2010. Annexure-I > On 27.5.2010, you issued a press statement wherein you supported the agitational call given by Hurriyat Conference (G) chairman and asked the people to observe complete strike on the eve of the visit of Sonia Gandhi to the valley to show the world that Kashmiris dont accept the accession with India. Annexure-J > On 31.5.2010 , news report appeared in Daily Itlaat and the Daily United Times, attributed to you, wherein you asked the government to withdraw the security forces from Kashmir and ridiculed the ruling national Conference. While commenting upon the anniversary of the Shopian incident you propagated the secessionist ideology and attributed such incidents to the presence of security forces in the Kashmir. Annexure K & K-2 > On 4.6.2010 , you visited Baramullah to condole the demise of the Jamiat-Islami member and while speaking on the occasion you attributed the killings , rapes, enforced disappearances and torture to the security forces and again, as usual , challenged the accession of state of Jammu and Kashmir with the Union of India . The report to this effect appeared in Daily Kashmir Times , Kashmir Monitor and Kashmir convener dated 5.6.2010 . Annexure L > On 6.6.2010 & 7.6.2010 some news items appeared in the Kashmir Uzma and daily Itlaat wherein, you are reported to have justified the violent protests being carried out in various parts of the valley .You also extended your support to the strike call given by APHC (G) group on 7.6.2010. Annexure-M & M-1. > On 13.6.2010 the Daily Itlaat , Kashmir Uzma and Rising Kashmir carried a news items attributed to you wherein you blamed the Jammu and Kashmir police of resorting to target killing of youth while dealing with the law and order situation . In fact this has been your practice to resort to unfounded propaganda to malign the working of the state administration. Annexure N,N-2,& N-3. > On 15.6.2010 the Daily Kashmir Times, the Daily Rising Kashmir , the Daily Kashmir Monitor and the Daily Aftaab carried a news items wherein you were reported to have said that the Indian forces are carrying out genocide in Kashmir . In the same statement you leveled false allegations against the government (Copy enclose as Annexure O, O-1,O-2,O-3.
> On 21.6.2010 a statement appeared in Daily Itlaat , Greater Kashmir and Kashmir Uzma wherein you have accused the Indian forces of resorting to genocide and killing the youth intentionally. Annexure P, P-1, P-2. > During the last week of June 2010 Hurriyat Conference (G) group of which you are also a member launched Quit Kashmir Campaign and announced a calendar of agitational programme,. You while expressing your support to the programme you accused the Indian forces of getting the innocent children and old killed through its agents. You also stated the India has taken the illegal possession of our natural resources .Annexure Q. > On 29.6.2010, you issued a statement alleging that the government was directly responsible for the killing of students. In fact, you have been issuing such statements regularly instigating the youth and exploiting their sentiments and making them to believe that the present struggle is their own struggle and they should continue it .Annexure R. > On 30.6.2010, you got a poster printed by the Daily Itlaat, titled Pather Masjid Chaliye. The contents of the poster were highly objectionable and secessionist in nature. In the poster you had further asked the people to march towards Pather Masjid and to protest there for seceding the state of Jammu and Kashmir from the union of India .Annexure S. > On 1.7.2010 a statement attributed to you appeared in Daily Greater Kashmir , Rising Kashmir , Itlaat and Kashmir Uzma wherein you have stated that the people should continue to fight till the state is seceded from Union of India. Annexure T,T-1,T-2,T-3.
On 1.7.2010, you along-with your associates appeared at Chattabal and resorted to highly anti national sloganeering. In this regard case Fir No 93/2010 u/s 13 ULA(P) Act stands registered in this regard in Police Station , Safakadal .
It is in fact the strategy of you and your like-minded associates that they repeatedly issue press statements wherein you propagate the secessionist ideology and ask the people to follow the programmes issued by such elements. Such statements have been found to be one of the means responsible for instigating the public to resort to violence.
> On 2.7.2010 , the Daily Aftaab carried a news item, the contents of which revealed that you while protesting at Chattabal you said that the government is killing the youth of the state in a well planned manner and you exhorted the general public to come on road and fight against the state terrorism. Annexure U. > On 12.7.2010 a statement issued by you appeared in the Daily Rising Kashmir , Daily Greater Kashmir and the Daily Itlaat , wherein you asked the people to observe a civil curfew on coming Monday to show solidarity with the youth who have been detained during the recent agitation. Annexure V,V-2 & V-3. > On 14.7.2010, you issued a statement, which appeared in various Daily newspapers like Kashmir Uzma, Aftaab , Rising Kashmir and Srinagar Times, wherein you extended your support to the agitation started by Hurriyat Conference (G) group. While supporting the programme , you threatened the government employees not to resume their duties. Annexure W,W-1,W-2 &W-
3.
For indulging in such activities, you were detained under the Provisions of public Safety Act in terms of detention warrant issued by this office vide order No. DMS/PSA/64/2010 dated 01/09/2010.You challenged your detention and the Honble Court was pleased to quash your detention vide its order dated 24.3.2011 on the grounds the material relied upon by the detaining authority has not been supplied to the petitioner which has prejudiced her in making a proper representation against the detention order. The Honble High Court however, have not commented upon the merits of the grounds of detention. In compliance with the Court directions, you have been discharged from PSA and are presently lodged in Kote-Bhalwal Jai, Jammu as an under trial.
It may be appreciated that during detention you were brought for court production before the Honble court of CJM Srinagar on 3.3.2011 for facing trial in case FIR No 09/2007 u/s 452,148 149 RPC of P/s Khanyar ,Srinagar Prior to the date of hearing an subsequent thereto, you were lodged in Women Police , Station Rambagh Srinagar. During your lodgment in the police station a number of women came to meet you on 02.03.2011, 4.3.2011 and 5.3.2011 .The details of the meetings between you and your associates are given below:-
On 2-3-2011 some activities of Dukhtaran-i- Milat lead by one Mst .Afroza called upon by you in womens police station .During the meeting, you instigated them to strengthen their carders and continue to carry on antinational activities. On 4-3-2011 four women activities lead by one Nahida Ji came to meet you in womens police station and during the meeting, you again resorted to the same strategy of arousing their anti- India sentiments by provoking them to keep their carders ready.
On 5-3-2011 , similar type of activities are reported to have taken place when some of your associates lead by one Mst. Rukaya came to see you in Womens Police Station.
It has further been learnt through reliable sources that you are contemplating to launch a fresh phase of agitation with the assistance of your likeminded associates. In this regard you are believed to have discussed some secret strategy with your colleagues.
During the meetings, reportedly you have stressed upon them to continue there secessionist activities and aroused anti India sentiments in them. You have further reported to have instigated them to strengthen the secessionist network and to remain in a state of preparedness for launching fresh agitation, once you are released from jail. You are believed to have discussed some new strategy with your colleagues and party carders regarding your designs to disturb the public order during the coming summer. As in the past , you are believed to be a major threat to the law and order, if you remain at large. During the previous agitations, your activities have remained highly objectionable and provocative and there is a well founded belief, based on the reports, that if you are allowed to remain at large at this stage, it will affect the maintenance of security of state adversely.
Though you are presently under arrest there is every likelihood of your being admitted to bail and in that eventuality there is a well founded apprehension that you will again indulge in secessionist activities keeping in view your profile and past activities.
In order to stop you from indulging in such activities , as mentioned above , your detention under the provisions of Public Safety Act at the stage has became imperative.
Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of the State and warrant immediate preventive measures to be taken against you so as to prevent the society from violence, strikes, economic adversity and social indiscipline.
On the basis of the aforementioned activities, I have reached to the conclusion that it would be expedient to detain you under the provisions of J&K Public Safety Act, 1978, for which orders are being issued separately. Detention order dated 20.06.2011 You are the self- styled Chairperson of secessionist organization Dukhtaran-i- Milat, which has been listed as a terrorist organization in the schedule attached to unlawful Activities (prevention) Amendment Act, 2008. The outfit has been declared as a terrorist organization on the basis of the activities being carried out under its banner, which are primarily conceived and executed by or on the directions of you. The stance taken by you and the nature of activities being carried out by you as well as your other associates is primarily encouraging terrorism and at times abetting the carrying out of terrorist activities. Your activities are posing a direct threat to the maintenance of security of the state.
In the year 1989 a proxy war was initiated at the behest of forces inimical to India , but to give a broader outlook it was felt necessary to include cross sections of the society in this war particularly women to create an arguments in support of its genuineness. In this scheme of things, you at the instance of these elements founded a women organization named Dukhtaran-i- Milat , with an ideology of supporting secessionism and to work towards achieving the goals of secessionism. You are the brain behind the outfit which has been found to be on the forefront of secessionist politics. Since the inception of the Dukhtaran-i- Milat, you have been using this platform for propagating you secessionist ideology and have emerged as one of the most vocal supporters of this ideology. You have been found involved in a number of criminal cases for which you have been arrested, detained and subsequently released on many occasions but the initiation of such proceeding have not deterred you from shunning the path of violence aimed at seceding the state of J& K from the Union of India. If your past profile is indicated, the it can be safely assumed that whenever you are at large, you indulge in such activities which are secessionist in nature and provocative in contour. In addition you have been making every effort to disrupt the peaceful atmosphere and trying to instigate violence through the print media. You are an incorrigible secessionist who not only harbors secessionist ideology but follows it by actions which constitute various offences. For indulging in such activities a number of criminal cases stand registered against you in various police stations. The details of which are as under:-
Case FIR NO 50/2002 u/s 120-B r/w 3,6 & 22 POTA P/S Khanyar ( copy enclosed as Annexure I ).
Case FIR No. 209/2005 u/s 148,452,342,354,506,307 RPC P/s Sadder ( Copy enclosed as Annexure II) Case FIR No. 180/2005 u/s 341,452,427 RPC P/s R.M Bagh ( Copy enclosed as Annexure III ) Case FIR No. 34/2006 u/s 10,13 ULA (P) Act 153-A RCP P/s Nigeen( Copy enclosed as Annexure IV).
Case FIR No. 11/2006 u/s 435,452,395,336,427,147,148 RPC P/s Sheergari (Copy enclosed as Annexure V) Case FIR No.175/2008 u/s 336,148 RPC 13 ULA (P) Act P/s Parimpora ( Copy enclosed as Annexure VI ) Case FIR No. 57/2009 u/s 3/25 A. Act P/s Nowhatta (Copy enclosed as Annexure VII ) Case FIR No. 157/2009 u/s 120,121-B , 153,121 RPC 13 ULA (P) Act P/s Shaheed Gung Srinagar ( Copy enclosed as Annexure VIII ) Case FIR No. 01/2011 u/s 18 ULA (P) Act r/w 120-B RPC of P/s CIJ ( Copy enclosed as Annexure IX ).
Despite initiation of criminal proceedings against you, you have been continuously indulging in antinational activities whenever you are at large. Since the year 2008, there has been a change of strategy adopted by the secessionists and instead of promoting terrorism , there has been an effort to disrupt the public order and to bring the general masses in confrontation with the security forces. Large scale violence have been witnessed during these years whereby general public is being instigated to attack security forces who are forced to retaliate for maintaining the public order. The consequences of retaliation are then exploited to support the secessionist ideology. You have been found at the forefront of implementing this strategy. In addition, you have been found maintaining continues media presence and the contents of press release attributed to you are highly objectionable, provocative, instigative and menacing in character. A brief description of various press releases issued by you prior to your detention are given below:-
? On 19-3-2010 a news item attributed to you appeared in the daily Aftab wherein you falsely accused the government of violating the human rights and use of force and criticized the government for such acts ( Copy enclosed as Annexure A) ? On 26-3-2010 , you issued a statement which appeared in the Daily Rising Kashmir and the Daily Srinagar Times of 27-3-2010 wherein you dobbed the educational tour organized for the youth of Anantnag District as a gimmick of the government which was meant to crush the resistance movement . You have been issuing such statements just to malign the image of the government and to spread hatred against the government ( Copy enclosed as Annexure B, B- 1) ? On 23.4.2010, you issued a statement which appeared in the Daily Itlaat , wherein you leveled false accusation upon the government machinery of implicating the accused persons who are convicted by the Delhi Court for carrying out blasts in Lajpat Nagar( Copy enclosed as Annexure C) ? You have been misusing every available opportunity to malign the image of India and the state administration on one pretext or the other. On 2.5.2010 , you issued a statement which appeared in the Daily Kashmir Times on 3.5.2010 , wherein you criticized the mainstream political parties of promoting obscenity and vulgarity in the society , though there was no such reason for the accusation ( Copy enclosed as Annexure D) ? On 5.5.2010,you issued another statement which appeared in all the Daily Newspapers of the valley like Daily Srinagar Times, Daily Aftab ,Daily Rising Kashmir and Greater Kashmir , wherein , you resorted to highly anti national remarks and tried to spread hatred among the masses against the union of India and simultaneously starting a negative campaign against the proposed Indo-Pak Dialogue ( Copy enclosed as Annexure E,E-1,E-2,E-3) ? On 9-5-2010 , news appeared in the Daily Kashmir UZMA, wherein you asked the people to observe a complete strike on 10-5-2010 because as per you version the judiciary has failed , jail inmates are being discriminated and police is not obeying the judicial orders. All these were in fact unfounded allegations aimed at garnering the support for secessionist ideology ( Copy enclosed as Annexure F) ? On 20-5-2010,a news item attributed to you appeared in the Daily Kashmir Uzma wherein you have reported to have criticized the government for detain another secessionists namely Masrat Aalam Bhat and in the same breath you glorified the youth who lay their lives for the so called Kashmir cause ( Copy enclosed as Annexure G).
? On 20-5-2010 while commenting upon the reservation bill, you alleged that it was an effort to change the demography of Kashmir and that the decision had been deliberately taken by the government to demolish the Muslim character of Jammu and Kashmir . You further asked the people to resist the decision of the government the way they did in the year 2008 against the transfer of land ( Copy enclosed as Annexure H) ? On 23.5.2010, you visited Shopian and addressed a women congregation at Jamia Masjid Shopian. In your address, as usual you targeted the government by accusing it of patronizing the people involved in the rape and murder of Asiya and Neelofar.You spoke in a highly derogatory language about the security forces and other government agencies. In your speech, you also said that fighting for seceding the state of Jammu and Kashmir from the union of India is like your religious obligation and you will fight for it till your last breath. In your address, you also asked the women to carry knives for saving their honour. The speech was carried in all the news papers of the valley of 24.5.2010 ( Copy enclosed as Annexure I) ? On 27.5.2010 , you issued a press statement wherein you supported the agitation call given by Hurriyat Conference (G) chairman and asked the people to observe complete strike on the eve of the visit of Sonia Gandhi to valley to show to the world that Kashmiris do not accept the acceptation with India ( Copy enclosed as Annexure J) ? On 31.5.2010 , news report appeared in Daily Itlaat and the Daily United Times, attributed to you, wherein you asked the government to withdraw the security forces from Kashmir and ridiculed the ruling national Conference. While commenting upon the anniversary of the Shopian incident you propagated the secessionist ideology and attributed such incidents to the presence of security forces in the Kashmir ( Copy enclosed as Annexure K,K-1) ? On 4.6.2010 , you visited Baramullah to condole the demise of the Jamiat-Islami member and while speaking on the occasion you attributed the killings , rapes, enforced disappearances and torture to the security forces and again, as usual , challenged the accession of state of Jammu and Kashmir with the Union of India . The report to this effect appeared in Daily Kashmir Times , Kashmir Monitor and Kashmir convenior dated 5.6.2010 ( Copy enclosed as Annexure L) ? On 6.6.2010 & 7.6.2010 some news items appeared in the Kashmir Uzma and daily Itlaat wherein, you are reported to have justified the violent protests being carried out in various parts of the valley .You also extended your support to the strike call given by APHC (G) group on 7.6.2010 Annexure-M & M-1. ? On 23.6.2010 the Daily Itlaat , Kashmir Uzma and Rising Kashmir carried a news items attributed to you wherein you blamed the Jammu and Kashmir police of resorting to target killing of youth while dealing with the law and order situation . In fact this has been your practice to resort to unfounded propaganda to malign the working of the state administration ( Copy enclosed as Annexure NN-1,N-2) ? On 15.6.2010 the Daily Kashmir Times, the Daily Rising Kashmir , the Daily Kashmir Monitor and the Daily Aftaab carried a news items wherein you were reported to have said that the Indian forces are carrying out genocide in Kashmir . In the same statement you leveled false allegations against the government (Copy enclose as Annexure O, O-1,O-2,O-3) ? On 21.6.2010 your statement appeared in Daily Itlaat , Greater Kashmir and Kashmir Uzma wherein you have accused the Indian forces of resorting to genocide and killing the youth intentionally (Copy enclosed as Annexure P, P-1, P-2) ? During the last week of June 2010 Hurriyat Conference (G) group of which you are also a member launched Quit Kashmir Campaign and announced a calendar of agitational programme, which in fact is going on till date. You while expressing your support to the programme accused the Indian forces of getting the innocent children and old killed through its agents. You also stated the India has taken the illegal possession of our natural resources ( Copy enclosed as Annexure Q) ? On 29.6.2010 , you issued a statement alleging that the government was directly responsible for the killing of students . In fact, you have been issuing such statements regularly instigating the youth and exploiting their sentiments and making them to believe that the present struggle is their own struggle and they should continue it( Copy enclosed as Annexure R) ? On 30.6.2010 , you got a poster printed by the Daily Itlaat, titled Pather Masjid Chaliye. The contents of the poster were highly objectionable and secessionist in contour. In the poster you had further asked the people to march towards Pather Masjid and to protest there for seceding the state of Jammu and Kashmir from the union of India ( Copy enclosed as Annexure S) ? On 1.7.2010 a statement attributed to you appeared in Daily Greater Kashmir , Rising Kashmir , Itlaat and Kashmir Uzma wherein you have stated that the people should continue to fight till the state is seceded from Union of India ( Copy enclose as Annexure T,T-1,T-2,T-3) ? On 1.7.2010, you along-with your associates appeared at Chattabal and resorted to highly anti national sloganeering. In this regard case Fir No 93/2010 u/s 13 ULA(P) Act stands registered in this regard in Police Station Safakadal (Copy enclosed as Annexure U) It is in fact the strategy of you and your like-minded associates that they repeatedly issue press statements wherein they propagate the secessionist ideology and ask the people to follow the programmes issued by such elements. Such statements have been found to be one of the means responsible for instigating the public to resort to violence.
? On 2.7.2010 , the Daily Aftaab carried a news item, the contents of which revealed that you while protesting at Chattabal said that the government is killing the youth of the state in a well planned manner and you exhorted the general public to come on road and fight against the state terrorism( Copy enclose as Annexure V) ? On 12.7.2010 a statement issued by you appeared in the Daily Rising Kashmir , Daily Greater Kashmir and the Daily Itlaat , wherein you asked the people to observe a civil curfew on coming Monday to show solidarity with the youth who have been detained during the recent agitation (Copy enclosed as Annexure W,W-1,W-2) ? On 14.7.2010, you issued a statement, which appeared in various Daily newspapers like Kashmir Uzma, Aftaab , Rising Kashmir and Srinagar Times, wherein you extended your support to the agitation started by Hurriyat Conference (G) group. While supporting the programme , you threatened the government employees not to resume their duties ( Copy enclosed as Annexure X,X-1,X-2) .
You have been detained on several occasions and last time you were detained under PSA vide this office order NO. DMK/PSA/01/2011 dated 07/04/2011. The said detention order has been quashed by the Honble High Court vide its order dated 19/05/2011 while adjudicating upon HCP NO. 160/2011 titled Syed Asiya Andrabi Vs State and others. After being discharged from PSA, you have been arrested by Police Station CIJ on 08/06/2011, as you were required in connection with the investigation of case FI R NO.01/2011 u/s 18 ULA (P) Act r/w 120-B RPC of P/s CIJ. The investigation of the case is going on and you are presently lodged in P/s CIJ under proper remand. Though, you are presently under custody but there is a like hood of your being admitted to bail and in that eventually there is a well founded apprehension that, you will again indulge in similar activities , as mentioned above, which have a bearing upon the maintenance of security of state. It may be appreciated that since last three years the secessionist elements, including you, have been desperately trying to disrupt the public order to create a conducive atmosphere for the propagation of secessionist ideology. During the year 2008, 2009, 2010 large-scale violence was witnesses and the investigations conducted in various cases has revealed that the violence was instigated by the secessionist elements including you. However, peace has been resorted but it is still fragile and needs to be consolidated upon. As has been noticed the general public was held hostage by these elements for preaching their own brand of antinational ideology. After taking a whole some vie of your activities and the clout you wield in secessionist circles your detention under the provisions of PSA at this stage has become imperative, keeping in view the large interests of the country and the general public.
Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of the state and warrant immediate preventive measures to be taken against you to prevent the society from violence, strikes , economic adversity and social indiscipline.
On the basis of the aforementioned activities, I have reached to the conclusion that it would be expedient to detain you under the provisions of J& K Public Safety Act , 1978, for which orders are being issued separately. A closer look at the above reproduced grounds of detention in support of detention orders dated 01.09.2010, 07.04.2011 and 20.06.2011 reveals that the grounds of detention intriguingly are identical, without any change in the sequence of events and activities attributed to detenue and the reasons that prompted respondent No.2 to pass detention orders. In the opinion of respondent No.2, the activities of detenue are highly prejudicial to the maintenance of security of the State and warrant immediate preventive measures to be taken against her, to prevent the society from violence, strikes, economic adversity and social indiscipline. In all the three cases it is admitted that the detenue at the time detention order was made, was under arrest in a substantive offence. However, the detaining authority opining that there was every likelihood of detenue being admitted to bail and in that eventuality a well founded apprehension that the detenue will again indulge in secessionist activities keeping in view her profile and past activities. The content and composition of the grounds of detention in three successive detention orders remains same with only minor additions attributed to the developments subsequent to the detention orders, unmindful of the fact that the detenue all along remained in detention despite quashment of detention orders dated 01.09.2010 and 07.04.2011. Once we find the grounds of detention in support of quashed detention order(s) and one under challenge to be, in substance, identical, it is next to be seen what is its fall out on the detention order. The question surfaced in Qazi Yasir Ahmad versus State of J&K and others, HCP No.218/2011. This Court, after scanning case law on the subject observed as under:- It is well settled law that when a detention order is quashed by the Court, the grounds of the order so quashed should not be taken into consideration, either as whole or in part, even along with fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order. It is to be appreciated that once the Court sets aside the detention order, it nullifies the entire order. The Detaining Authority therefore cannot consider the grounds that were relied upon to pass the earlier detention order or activities that were detailed in such grounds. The position may be different where the earlier detention order is revoked due to technical reasons. In such a situation the grounds of detention may be used to make fresh detention order after removal of technical impediment or loopholes. However, no such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. The Court in earlier Habeas Corpus Petition (HCP No.160/2011), wherein the detention order dated 07.04.2011 against the detenue was questioned, while quashing the detention order, dealt with the issue and held that the grounds of detention made use of in support of the detention order, could not be employed to make a fresh detention order after the previous detention order is quashed by the Court. It would be advantageous to reproduce following excerpts from the below mentioned reported cases noticed by the Court while quashing detention order dated 07.04.2011.
In Chhagan Bhagwan Kahar versus N. L. Kalna and others (AIR 1989 SC 1234), Supreme Court held:-
12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order.
1. In Jahangir Khan Fazal Khan Pathan versus The Police Commissioner, Ahmedabad and another (AIR 1989 SC 1812), the Court held:
It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.
2. Again in Ramesh versus State of Gujarat (AIR 1989 SC 1881), it is held:
10. On a careful scrutiny of grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal case mentioned under Sr. Nos.1 and 2 of the table which where the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenue.
3. The detention order, impugned in the petition, is thus liable to be quashed only on the ground that the grounds of detention made use of by respondent No.2 while passing detention orders subsequently quashed, were pressed into service while passing detention order in question. Let us now focus on some other aspects of the matter.
4. The respondent No.2, after reproducing almost all the grounds of detention in verbatim as were set out in support of detention order dated 07.04.2011, proceeded to observe as under:-
Though you are presently under custody but there is a likelihood of your being admitted to bail and in that eventuality there is a well founded apprehension that you will again indulge in simiarl activities as mentioned above, which have a bearing upon the maintenance of security of the state.
5. The detaining authority has not spelt out the reasons that prompted him to nurse an opinion that there was likelihood of the detenue getting admitted to bail. The detaining authority did not refer to any application presented on behalf of the detenue before the competent court for her enlargement on bail or pendency of any such application before such Court. The detaining authority has not even referred to grant of bail by the competent court in favour of any of the co-accused as would make him believe that detenue may also succeed in getting enlarged on bail. The apprehension nursed by respondent No.2 and voiced in the grounds of detention as regard likelihood of the detenue being enlarged on bail, in the circumstances, is devoid of any basis and would not constitute a valid ground for recording subjective satisfaction in this regard.
While holding so, support is drawn from law laid down in following reported cases:-
In Amrit Lal and others versus Union of India (AIR 2000 SC 3675) it has been held:
There must be cogent materials before the officer passing the detention order that the detenue is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. Likelihood of detenus moving an application for bail is not a cogent material and detention order based on such material is liable to be quashed. The reasoning that there is likelihood to be released on bail is different from likelihood of his moving an application for bail.
The law has been reiterated in Rekha versus State of Tamil Nadu (AIR 2011 SCW 2262), in the following words:
In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.
6. The 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 detenue is to be remanded to police or judicial custody or allowed to go with or without bail. The detenue cannot engage a lawyer to represent him before the detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenue by the Constitution and the preventive detention law, should be strictly followed.
Supreme Court in Rekhas case (supra), while emphasizing need to adhere to the 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 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.
7. The Court making reference to law laid down in Kamleshwar Ishwar Prasad Patel Vs. Union of India and Others (1995) 2 SCC 51 (para 49) 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.
8. The Court also quoted with approval following observation made in Ratan Singh Vs. State of Punjab and others (1981 (4) SCC 1981) :-
But the .laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at- least those safeguards are not denied to the detenus
9. Law on the subject was succinctly laid down by the apex Court in Abdul Latif Abdul Wahab Sheikh Vs. 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.
10. The Constitution of India Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to the detenue first that the detenue is informed of grounds of detention that prompted the detaining authority to pass the detention order and second that the detenue is allowed to represent against his/her detention immediately after the detention order is made or executed. The Constitutional and Statutory safeguards guaranteed to the detenue are to be meaningful only if the detenue is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenue is necessary to prevent him from acting in any manner prejudicial to the security of the State of public order and further it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the detenue guessing about what really weighed with the detaining authority to make the order.
11. The detention order makes mention of material record such as dossier and other connecting documents relied upon by the detaining authority while making the detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police, Srinagar. The detention record does not convincingly establish that all the documents referred to in the detention order were actually supplied to the detenue. The endorsement on the reverse of detention order made by Executing Officer Gulshan Akhter, S.H.O. Womens Cell, Srinagar, at the time of execution of detention order and reproduced hereunder, however, belies such assertion:-
In compliance to D.M. Sgr order No.DMS/PSA/ 12/2011 Dtd 20/06/2011, I Gulshan Akhtar S.H.O. Women Cell Sgr, took into custody P.S.A. detenue Syed Asya Indrabi W/o Ashaq Hussain Faktoo R/o Soura Sgr from P/S Women Cell Sgr for execution of PSA warrant. The contents of the warrant, grounds of detention were read over and explained to her in English/Kashmiri languages which she fully understood and in token her signature is obtained at Mark A.
The detenue alongwith relevant documents of detention has been handed over to the jail authority of Central Jail Jammu Koat Bhalwal for further lodgement instead of District Jail Baramulla as ordered by D.M. Sgr. vide No.DMS/JUD/PSA/585-91/2011 Dtd 25/06/2011. She has also been informed that she can make representation to the Govt. against her detention if she so desire.
12. Though the grounds of detention indicate that aforementioned material is enclosed with the grounds of detention, the above reproduced endorsement on the reverse of detention order does not refer to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter.
13. The grounds of detention make reference to the following cases FIRs, registered against detenue:-
1) FIR No.50/2002 u/s 120-B r/w 3, 6 & 22 POTA P/S Khanyar. 2) 209/2005 u/s 148,452,342,354,506,307 RPC P/s Sadder. 3) Case FIR No. 180/2005 u/s 341,452,427 RPC P/s R.M Bagh. 4) FIR No. 34/2006 u/s 10,13 ULA (P) Act 153-A RCP P/s Nigeen 5) FIR No. 11/2006 u/s 435,452,395,336,427,147,148 RPC P/s Sheergari 6) FIR No.175/2008 u/s 336,148 RPC 13 ULA (P) Act P/s Parimpora 7) FIR No. 57/2009 u/s 3/25 A. Act P/s Nowhatta 8) FIR No. 157/2009 u/s 120,121-B , 153,121 RPC 13 ULA (P) Act P/s Shaheed Gung Srinagar 9) FIR No. 01/2011 u/s 18 ULA (P) Act r/w 120-B RPC of P/s CIJ
14. The involvement of detenue in aforementioned cases appears to have heavily weighed with detaining authority while making detention order. The record does not indicate that copies of aforementioned First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s), were ever supplied to detenue. It needs to be noticed that the detaining authority, in grounds of detention after detailing background in which aforesaid cases were registered against detenue, proceeds to opine Therefore, it is clear that your activities are highly prejudicial to the maintenance of security of the State.. The material, mentioned above, thus assumes significance in the facts and circumstances of the case and ought to have been provided to the detenue to enable her to make meaningful exercise of her Constitutional and Statutory rights.
15. It is pertinent to point out that the Receipt of Grounds of Detention, while indicating that 53 leaves, in addition to the detention order and dossier prepared by Superintendent Police, were handed over to the detenue at the time of execution of detention order, does not catalogue the documents handed over or given details of 53 leaves handed over to detenue. The respondent No.2 and the Executing Officer ought to have made a list of documents comprising 53 leaves in the Receipt of Grounds of Detention and given brief description of such documents, so as to convincingly establish that 53 leaves handed over to detenue, were the documents, a mention whereof was made in the grounds of detention and were relied upon by the detaining authority while passing detention order in question. In absence of such details and description, it is not possible to hold that what was handed over to detenue was the material relied upon and that the detenue thus was in a position to make an effective representation against her detention. It may be stated at the cost of repetition that having regard to the fallout of detention order on personal liberty of a person, the Courts will always give a hard look to the matter and look for strict proof of compliance of Constitutional and Statutory guarantees.
16. Furthermore the detention record does not reveal that the Superintendent, Central Jail, Kotebhalwal, provided the facilities to the detenue that would make it possible to scan and scrutinise voluminous material handed over to detenue and thereafter pen down her representation. Mere handing over of material would not suffice to answer Constitutional and Statutory requirements unless and until the Superintendent of Jail concerned, where the detenue is lodged, provides necessary facilities to detenue to write down the representation and there is material on the detention record to indicate that such facilities were made available to detenue.
17. The detenue independent of her right to file a representation against her detention to Government had also right to submit a representation to respondent No.2 till detention order was considered by the Government and approval accorded. The respondent No.2 was under an obligation to inform the detenue at the time of execution of detention order that she had right to represent against her detention to respondent No.2, till detention order was placed before the Government for accord of approval. The detention record reveals that the detenue was not so informed at the time of execution of detention order. The endorsement on the reverse of detention order recorded by Executing Officer at the time of execution of detention order and reproduced above indicates that the detenue was only informed of her right to make a representation to the Government against her detention, if she so desired and not that she could also make a representation to respondent No.2 during interval of 12 days the detention order in terms of Section 8(4), J&K Public Safety Act 1978 was to stay in force. The Receipt of Grounds of Detention signed by the Executing Officer, detenue and attested by Superintendent, Central Jail, Kotebhalwal, Jammu, also indicates that the detenue was only informed of right to make a representation against her detention to the Government. The communication No.DMS/PSA/Jud/66-69/2011 dated 20.06.2011, addressed by District Magistrate to detenue does not bear signature of detenue in token of its receipt and is of no consequence in view of Receipt of Grounds of Detention, which is duly signed by detenue, Executing Officer and Superintendent, Central Jail, Kotebhalwal, Jammu and expressly indicates that the detenue was only informed of her right to represent to Government. There thus has been infringement of Constitutional and Statutory rights available to detenue and guaranteed under Article 22(5) Constitution of India and Section 13, J&K Public Safety Act 1978. While holding so I draw support from State of Maharashtra and others versus Santosh Shanker Acharya, AIR, 2000 SC 2504.
18. Whenever a person is to face or is facing criminal trial, the right course for the authorities is to make use of ordinary penal law which gives a right to authorities/respondents to resist and oppose grant of bail to the accused. The Supreme Court in Rekhas case (supra) while holding that observations made in Haradhan Saha Vs. State of West Bengal, (1975) 3 SCC 198), case, cannot be regarded as unqualified statement that in every case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law, the Court held:-
Articles 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (Indian Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
19. The grounds of detention reveal that the detenue is to face trial or is facing trial in as many as nine criminal cases involving offences ranging from 3, 6 & 22 POTA; 307, 120, 120-B, 121-B, RPC, 12 ULA (P) Act, etc. In the circumstances the normal course for the respondents would be to allow the trial in all these cases commence against detenue, if it is already not commenced and oppose any application made on behalf of detenue for grant of bail. Needles to mention that in non-boilable offence an accused does not get the bail as a matter of right and repetition of offence(s) is one of the grounds available to the prosecution to oppose the bail. Having regard to the law laid down in Ghulam Nabi Dar vs State of J&K (KLJ 637) and observation of the Apex Court in Rekhas case while commenting upon observations made by it in Haradhan Sahas case (supra) that Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. the preventive detention can be resorted to only when there are compelling reasons to conclude that the ordinary law of the land is not sufficient to deter the detenue from his/her activities. There are no compelling reasons spelt out in the present case that can be said to have forced respondent No.2 to fall back upon preventive detention when the detenue, as pointed out, is facing trial or is to face trial in as many as nine criminal cases involving non-bailable offences, some of which carry punishment of ten years imprisonment. The respondents thus could very well persuade the Trial Court not to exercise the discretion under section 497/498 Cr.P.C. in favour of the petitioner if any bail application at all was filed on her behalf. It is pertinent to point out that at the time detention orders were slapped on the detenue, she was in custody in a substantive offence without any bail application filed on her behalf.
20. For the reasons discussed above, the detention order No.DMS/PSA/12/2011 dated 20th June 2011, does not stand legal scrutiny and is liable to be set aside.
21. The matter must normally end there. However, the case set up by petitioner does not permit such a course. The petitioner in Para 22(i) of the petition on account of alleged harassment, inconvenience and hardship, to which the detenue is said to have been exposed because of successive detention orders passed in a mechanical manner, unmindful of Constitutional and Statutory safeguards and in colourable exercise of power, claims compensation from respondents tentatively assessed at Rs.50.00 lakhs.
The respondent No.2, in his counter affidavit, has denied Para 22(i) of the petition. In reply it is stated that the detenue is involved in anti-social/anti-national activities, which according to respodnetn No.2, is evident from the material and record and that the order has been passed as a measure of preventive detention to restrain the detenue from indulging in activities which are prejudicial to the security of the State.
22. The controversy makes it imperative to have an overview of nature of right to personal liberty, the circumstances, in which, personal liberty can be eclipsed by preventive detention and mode and manner in which the third successive detention order i.e., one questioned in the present petition, has been passed.
23. Truth, non-violence, tolerance, inclusiveness and a fair deal even to the last in queue, have been at the edifice of governance in our Country from times immemorial. These concepts are older than any Constitution in the World and have been always there except few dark patches of colonial rule. The right to personal liberty runs through weft and warp of these fundamental principles.
24. Once after a long and arduous struggle, we regained our independence, the front runners in freedom struggle lost no time in giving right to personal liberty its proper place and incorporated in it as one of the precious and important fundamental rights in Part-III of the Constitution. The Founding fathers, in the words of Supreme Court in Rekhas case (supra) realised its value because they had seen during freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India. The right to personal liberty is a dimension of Satya and Ahinsa, that are amongst core concepts of our Constitution. It is, as a matter of fact, mirrored in all of them.
25. The right to personal liberty is core value and basic feature of our Constitution. When we gave Constitution unto ourselves, we made a solemn pledge to secure to all the citizens justice social, economical and political, and liberty of thought, expression belief, faith and worship. We every individual and every organ of the State, are all bound by the pledge and under a Constitutional obligation to secure justice and liberty in all its manifestation to all citizens. Let us see whether this Constitutional obligation has been discharged by respondents and respondent No.2 in particular in the present case.
26. Supreme Court in Rekhas case emphasising that powers with, which the Government is armed to prevent anarchy, were not abused, observed:
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 for. 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.
27. The Court proceeded to observe:-
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.
28. The court referring to the nature of power available to the Government under preventive detention law, held:-
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.
29. After noticing the fundamental principles governing exercise of power to order preventive detention against the backdrop of Article 22, Constitution of India read with Section 8, J&K Public Safety Act 1978, let us once again shift focus to the detention order in question.
30. The respondent No.2 in concluding para of grounds of detention dated 20.06.2011, has made mention of the order dated 19th May 2011 in HCP No.160/2011, whereby the earlier detention order No.DMS/PSA/01/2011 dated 07.04.2011, was quashed, indicating thereby that respondent No.2 was aware of the High Court order dated 19.05.2011 and the reasons that persuaded the Court to quash the detention order. The respondent No.2 is also expected to be aware of the following observations made by the High Court while quashing the earlier detention order:-
it is true that the past conduct and antecedents are to be taken note of but when the past conduct and antecedents have been taken note of in the order of detention which has been quashed, same position could not be taken note of for deriving satisfaction for passing the fresh order of detention as is the law laid down in the judgment AIR SC 1234 referred above. and that:
It is clear that all the aforesaid facts are relatable to the period when the detenue was in custody in connection with earlier order of detention and it is also clear that the detenue was not released after the earlier order of detention was quashed, instead, while in custody, impugned order of detention was executed, whether on such grounds order of detention is valid, has to be answered in negative in view of the law laid down by the Honble Apex Court in the judgment captioned Kshetra Gogoi Vs. State of Assam (AIR 1970 SC 1664).
31. The respondent No.2 thus is t be presumed to have been aware that the grounds of detention relied upon by him while directing preventive detention of detenue vide NO.DMS/PSA/01/2011 dated 07.04.2011, had been set aside and found to have been also made use of by respondent NO.2 while making earlier detention order i.e., No.DMS/PSA/ 64/2010 dated 01.09.2010, quashed on 24.03.2011. The respondent No.2 was not expected to order detention of detenue on the same grounds, which had been found not available to make detention order No.DMS/PSA/01/2011 dated 07.04.2011.
32. It appears that respondent No.2 while directing detention of detenue vide order No.DMS/PSA/01/2011 dated 7.4.2011 erroneously made the following comment on the High Court order dated 24.3.2011:
For indulging in such activities, you were detained under the Provisions of public Safety Act in terms of detention warrant issued by this office vide order No. DMS/PSA/64/2010 dated 01/09/2010.You challenged your detention and the Honble Court was pleased to quash your detention vide its order dated 24.3.2011 on the grounds the material relied upon by the detaining authority has not been supplied to the petitioner which has prejudiced her in making a proper representation against the detention order. The Honble High Court however, have not commented upon the merits of the grounds of detention. In compliance with the Court directions, you have been discharged from PSA and are presently lodged in Kote-Bhalwal Jai, Jammu as an under trial.
33. The respondent No.2 thereafter proceeded to make use of grounds of detention pressed into service to pass earlier detention order No.DMS/PSA/64/2010 dated 01.09.2010, to pass fresh detention order No.DMS/PSA/01/2011 dated 07.04.2011.
The respondent No.2 very conveniently avoided to notice that the detention order No.DMS/PSA/64/2011 dated 01.09.2010, was not quashed only because of non-supply of material relied upon, to the detenue but the Court after referring to Apex Court judgement in T.P. Moideen Koya versus Govt. of Kerala (2004(8) SCC 106) and Gh. Nabi Dar Vs State of J&K (2002 KLJ 637), held:
From the order of detention and the grounds of detention I find no compelling reasons for the detention of the detenue are recorded by the detaining authority.
34. The respondent No.2, as is evident from the foregoing discussion, has in utter disregard of law passed detention orders more than once on the same grounds that were found by the Court not to warrant preventive detention of the detenue. The lapse on the part of respondent No.2 cannot be labelled as a mere technical or procedural lapse but is a deliberate and wilful disobedience of law and disregard of the judgements rendered by the Court in HCP No.244/20110 and 160/2011.
35. The mode and manner in which District Magistrate Srinagar respondent No.2 has slapped successive detention orders, one after another, on substantially identical grounds, unmindful of the fact that the grounds of detention were held not to disclose compelling reasons and to be identical and quashed, render the detention order punitive in character. The respondent No.2 needs to be reminded of the following observations made by the Apex Court in Rekhas case (supra):-
It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? The question is whether respondent No.2 is to be asked to pay compensation to the detenue, to compensate the loss, inconvenience and hardship, to which detenue has been exposed because of the detention order in question.
36. Learned counsel for petitioner relying on law laid down in AIR 1986 SC 494, Bhim Singh Vs State of J&K; AIR 1983 SC 1086 Rudu Shah Vs State of Bihar & anr; AIR 1997 SC 1203 Peoples Union for Civil Liberties Vs Union of India; AIR 1997 SC 1203 Peoples Union for Civil Liberties Vs UOI; AIR 1997 SC 1203 Peoples Union for Civil Liberties Vs Union of India; AIR 1996 SC 2426 P.B.Khet Mazdoor Samity Vs State of W.B.; AIR 1996 SC 3261 Kirloskar Brothers Ltd Vs ESI Corpn.; AIR 1995 SC 922 Consumer Education & Research Centre Vs Union of India; AIR 1997 SC 610 D.K.Basu Vs State of W.B.; AIR 1990 SC 513 SAHELI a Womens Resources Centre Vs Commr.
Of Police Delhi; AIR 1993 SC 1960 Nilabati Behera Vs State of Orissa; 2006 CRI.L.J. 1242; Sube Singh Vs State of Haryana; AIR 2006 SC 1117 Sube Singh Vs State of Haryana; AIR 2007 SC 1840 Masooda Parveen Vs UOI; 1991 (2) SCC 373 State of Maharashtra Vs Ravikants Patil, insists that the Court while quashing detention order is also under legal obligation to see that the detenue is compensated for the wrong done to her. There is no scope for disagreement with the argument advanced by learned counsel for petitioner that whenever Court is satisfied that the right to personal liberty of a person has been invaded with malicious intent, illegal design or in gross violation of law to the knowledge of detaining authority, the mere direction to set free the detenue would not redress the grievances and award of compensation merits consideration. The Apex Court in Bhim Singh Vs State of J&K (AIR 1986 SC 494) observed:
When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation.
37. The Supreme Court while holding so placed reliance on law laid down in Rudul Sah V. State of Bihar (AIR 1983 SC 1086), wherein it was observed that:-
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.
38. However, in the present case the focus in the proceedings has been exclusively on the release of the detenue from custody, in the background of infringement of Constitutional and Statutory safeguards. The respondents, as per practice followed in Habeas Corpus matters, have not filed their counter affidavits and have left it to the detaining authority/respondent No.2 to justify the detention order and oppose the Habeas Corpus Petition. It is pertinent to point out that J&K Public Safety Act 1978 lays down an elaborate mechanism, whereby detention order is made by the Government in terms of Section 8(1) or by Divisional Commissioner/District Magistrate in terms of Section 8(2) and in later case approved by the Government as laid down under section 8(4) of the Act. Once the Court looks into the question of awarding compensation in favour of the detenue for loss, inconvenience and hardship with which the detenue was visited in wake of detention order, the Court may go beyond the liability of respondent No.2 to pay such compensation and as in Bhim Singhs case (supra) find that responsibility rests elsewhere and consider making a direction to pay compensation, to respondents 1, 3 to 6 or one or more of the respondents. So viewed, the interest of justice demands that respondents be given an adequate opportunity to file their reply to the detenues claim for compensation on account of violation of her right to personal liberty guaranteed under Article 21, Constitution of India.
For the reasons discussed above, the petition is allowed and detention order No.DMS/PSA/12/2011 dated 20th June 2011, passed by the District Magistrate, Srinagar respondent No. 2, directing detention of Syed Asiya Andrabi wife of Ashaq Hussain Faktoo resident of Soura, Srinagar, is quashed.
The respondents, in view of quashment of detention order, are stripped of any authority to continue to detain the detenue under order No.DMS/PSA/12/2011 dated 20th June 2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No.DMS/PSA/ 12/2011 dated 20th June 2011. The respondents 1, 3 to 6 to file their counter affidavit(s), if any, in reply to the petitioners claim for compensation on account of her detention with copy to otherside within two weeks.
List after two weeks.
( Hasnain Massodi ) Judge Srinagar 25.08.2011