Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Rather vs State Of J&K; And Others on 17 May, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP No.486/2016
Date of Decision: 17/05/2017 Bashir Ahmad Rather Versus State of J&K and another Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr. B.A.Tak, Advocate For respondent(s): Mr. Irfan Andleeb, Dy. A.G. Whether to be reported in Digest/Journal? Yes/No
1. Detenu - Bashir Ahmad Rather son of Ghulam Rasool Rather resident of Beehama, Tehsil & District Ganderbal (for short "detenu") seeks quashment of detention order No.140-DMG/PSA/2016 dated 29th September 2016, passed by District Magistrate, Ganderbal (for brevity "Detaining Authority"), directing preventive detention of detenu, on the grounds detailed in petition on hand.
2. Respondents filed their counter in opposition to the petition and resisted the petition.
3. Heard learned counsel for the parties at length and considered the matter.
4. Learned counsel for petitioner states that detenu was required to be supplied all documents, statements and other material relied upon in the grounds of detention, so as to enable him to make an effective and meaningful representation against his detention and failure to supply such material/documents, amounts to violation of Article 22(5) of the Constitution of India. In cement his submissions, learned counsel places reliance on decision rendered in Rajinder Arora v. Union of India (2006) 4 SCC 796; Powanammal v.
State of Tamil Nadu and anr. AIR 1999 SC 618; State of Maharashtra & ors v. Santosh Shankar Acharya AIR 2000 SC 2504; Rekha v. State of Tamilnadu AIR 2011 SCW 2262; Thahira Haris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184; G. M. Shah v. State of J&K (1980) 1 SCC 132; Talib Hussain v. State of J&K & ors 2009 (II) SLJ 849; Nissar Ahmad Bhat v. State & ors 2014 (III) SLJ 1047; Shahmali v. State and others 2010 (1) SLJ 56; Dilawar Magray v. State of J&K & ors 2010 (II) SLJ 696; and Sajad Ahmad Khan v. State & ors 2010 (II) SLJ 743.
5. Learned counsel for respondents states that detention order has HCP no.486/2016 Page 1 of 9 been passed on subjective satisfaction by detaining authority, therefore, petition is liable to be dismissed.
6. Article 22(3)(b) of the Constitution of India that permits preventive detention, is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people and not to put them in jail for a long period without recourse to a lawyer and without a trial.
7. 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 three months, or any other period(s), is a punishment of that particular period's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? Further in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', The detaining authority passes the order of detention on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. 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.
8. 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. 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 HCP no.486/2016 Page 2 of 9 preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is mandatory and vital. The Supreme Court in Rekha's case (supra) while making reference to law laid down in Kamleshwar Ishwar Prasad Patel v. Union of India and Others (1995) 2 SCC 51 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 nature of alleged activities of the detenu. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC 481, emphasising the need to ensure that the Constitutional and Statutory safeguards available to a detenu were followed in letter and spirit observed: "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 detenu's."
9. The procedural requirements are the only safeguards available to a detenu since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and anr. (1987) 2 SCC 22, 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. From the above overview of case law on the subject of preventive detention, the baseline, that emerges is that whenever preventive detention is called in question in a court of law, first and foremost task before the Court is to see whether procedural safeguards guaranteed under Article 22(5) of the Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to.
11. Preventive detention is a serious invasion of personal liberty and meagre safeguards that the Constitution provides against improper exercise of the power, must be jealously watched and enforced by the Court, has been said by the Supreme Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi and ors 1953 SCR 708. Detenu has a right, under Article 22(5), to be furnished with particulars of the grounds of his detention, HCP no.486/2016 Page 3 of 9 sufficient to enable him to make a representation which on being considered may give relief to him. This constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, and if same has not been done, the detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. The detenu is, therefore, entitled to be released and set at liberty.
12. The right which the detenu enjoys under Article 22(5) is of immense importance. In order to properly comprehend the submissions of the detenu, Article 22(5) is reproduced as under:
"22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
This Article of the Constitution can be broadly classified in two categories: (i) the grounds on which detention order is passed must be communicated to detenu as expeditiously as possible and (ii) proper opportunity of making representation against detention order be provided.
13. Preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenu by the Constitution and the preventive detention law, should be strictly followed. The Supreme Court in Rekha's case (supra), while emphasising need to adhere to procedural safeguards, observed:
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of HCP no.486/2016 Page 4 of 9 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."
14. The Constitution of India - Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to the detenu - first that the detenu is informed of grounds of detention that prompted the detaining authority to pass the detention order and second that the detenu 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 detenu are to be meaningful only if the detenu is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenu 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 detenu guessing about what really weighed with the detaining authority to make the order.
15. Detention order mentions material record such as dossier and other connecting documents relied upon by the detaining authority while making detention order. The detention record does not convincingly establish that all the documents referred to in the detention order were actually supplied to detenu. Grounds of detention make reference to various FIRs to have been registered against detenu. The involvement of detenu in the cases/FIRs appears to have weighed with detaining authority while making detention order. The counter affidavit, however, does not indicate that copies of First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of case(s) mentioned in grounds of detention, were ever supplied to detenu. The material, mentioned in grounds of detention, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis that detenu cannot be expected to make a meaningful exercise of his Constitutional HCP no.486/2016 Page 5 of 9 and Statutory rights guaranteed under Article 22 (5) of Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all said material available, that he can make an effort to convince Detaining Authority and thereafter Government that their apprehension as regards his activities are baseless and misplaced. If detenu is not supplied material, on which detention order is based, he cannot be in a position to make an effective representation against his detention order. The failure on part of detaining authority to supply material relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. While holding so, I draw support from law laid down in Thahira Haris case (supra); Union of India v. Ranu Bhandari 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate AIR, 1982 SC 1315; Sofia Ghulam Mohammad Bam v. State of Maharashtra & ors AIR, 1999, SC 3051; and Syed Aasiya Indrabi v. State of J&K & ors 2009 (I) S.L.J 219; and Union of India v. Ranu Bhandari 2008 Cr. L. J. 4567;
16. Article 22(5) of the 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 maintenance of public order or security of the State. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenu an 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 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. In the instant case, detenu is alleged HCP no.486/2016 Page 6 of 9 to have provoked/ instigated youth against government establishment and create law and order problem. The detenu is also alleged to have motivated and instigated youth to create law and order problems, and inciting youth for stone pelting upon security forces. The detenu was not provided the particulars of youth, who are alleged to have been instigated/provoked by detenu. The detenu, in absence of such details, could not be expected to have been in a position to give his side of story and persuade detaining authority and other respondents that the allegations against him were bereft of any basis. To sum up, grounds of detention that constitute basis for detention order in question are ambiguous, vague, uncertain and hazy. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenu has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenu. These are only few instances to illustrate that grounds of detention are vague and ambiguous and bound to keep detenu guessing about what really was intended to be conveyed by detaining authority. It is well settled law that even where one of grounds, relied upon by Detaining Authority to order detention, is vague and ambiguous, Constitutional and Statutory right of detenu to make an effective representation against his detention are taken to have been violated. Reference in this regard may be made to law laid down in State of Maharashtra & ors v. Santosh Shankar Acharya case (supra); Chaju Ram v. State of J&K AIR 1971 SC 263; Dr.Ram Krishan v. The State of Delhi & ors. AIR 1953 SC 318; Mohd Yousuf Rather v. State of J&K AIR 1979 SC 1925; and Ghulam Nabi Shah v. State of J&K & ors. 2005(I) SLJ 251.
17. Further to point out here that individual liberty is a cherished right that is one of most valuable fundamental rights guaranteed by our Constitution to the citizens of the country. In the scheme of Constitution, utmost importance has been given to life and personal liberty of the individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention, there is deprivation of HCP no.486/2016 Page 7 of 9 liberty, therefore, safeguards provided by Article 22 of the Constitution of the India, have to be scrupulously adhered to. Procedural reasonableness, which is invoked, cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.
The history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the Court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is of great importance. Personal liberty protected under Article 21, is so sacrosanct and so high in the scale of constitutional values that it is the obligation of detaining authority to show that impugned detention meticulously accords with the procedure established by law. However, the constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State's security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In a case of preventive detention, no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, when a person's greatest of human freedoms, i.e. personal liberty, is deprived, the laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, has to be mandatorily made. Reference in this regard is made to Haradhan Saha v HCP no.486/2016 Page 8 of 9 The State of West Bengal & Others, (1975) 3 SCC 198 and Union of India v. Paul Manickam & Another, (2003) 8 SCC 342.
18. For the reasons discussed above, the petition is allowed and detention order No.140-DMG/PSA/2016 dated 29th September 2016, passed by the District Magistrate, Ganderbal - respondent No. 2, directing detention of Bashir Ahmad Rather son of Ghulam Rasool Rather resident of Beehama, Tehsil & District Ganderbal, quashed. Respondents are directed to set the detenu at liberty. Disposed of.
19. Record be returned to counsel for respondents.
( Tashi Rabstan ) Judge Srinagar 17th May 2017 Ajaz Ahmad HCP no.486/2016 Page 9 of 9