Jammu & Kashmir High Court
Tanveer Ahmad vs State Of J&K & Ors on 6 February, 2012
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. HCP No. 48 OF 2011 Tanveer Ahmad Petitioners State of J&K & ors Respondent !Mr. Iliyas, brother of petitioner present on behalf of petitioner ^Mr. Gagan Basotra, AAG Honble Mr. Justice Hasnain Massodi, Judge Date: 06.02.2012 :J U D G M E N T :
1. Challenge is to order No. DM/ Doda/ PSA/ 2KXI/210-17 dated 23.1.2011 whereby District Magistrate Doda respondent No.2 herein, has ordered preventive detention of Shri Tanveer Ahmad s/o Lt. Sh. Mushtaq Ahmad R/o Labber Marmat, Tehsil and District Doda, under section 8 Public Safety Act 1978.
2. The grounds set out in the petition to question the detention order are that the order is contrary to law inasmuch as the detaining Authority has failed to record satisfaction required under the provisions of J&K Public Safety Act 1978 before passing the detention order. It is pleaded that the detenue was arrested by Police Station Doda, on 14.12.2011 in connection with case FIR No.45/2010 and it was during his police custody that the detention order impugned in the petition was passed. The respondents are said to have violated the safeguards guaranteed to the detenue under Article 22(5) Constitution of India inasmuch as neither the document relied upon by Detaining Authority were served on the petitioner nor the grounds of detention communicated and explained in the language the petitioner understands. The respondents for the said reason are also alleged to have violated mandate of section 13 of J&K Public Safety Act 1978. It is further pleaded that the respondent did not place the detention order before the Government and thereafter before the State Advisory Board within the period prescribed under law. Pleading that the grounds of detention are evasive reproduction of dossier prepared by Sr. Superintendent of Police, Doda, the petitioner insists that there has been non application of mind on part of the Detaining Authority and that the detention order has been made in an arbitrary and mechanical manner.
3. The respondent No.2 in his reply to the petition insists that the detenue is a hardcore and dedicated over ground worker (OGW) of banned anti national militant organisation H.M and has been found motivating local youth to join militancy and wage war against the State. The detenue is claimed to have been harbouring militants of H.M organisation and extending logistic support to the militants to assist them in carrying on their anti national activities. The respondent No.2 claims to have on perusal of the documents arrived at the subjective satisfaction that to prevent the petitioner from acting in a manner prejudicial to the security of the State, it was necessary to place him under preventive detention. It is insisted that the grounds of detention were supplied to the detenue on 24.1.2011 i.e the date of execution of detention order and read over and explained to the detenue in urdu/Kashmir the languages he fully understands.
4. I have gone through the pleading as well as detention record made available by Mr. Basotra, AAG. I have heard counsel for the parties.
5. It needs no emphasis that a person detained under preventive detention law is held in custody without a formal charge or formal trial and not because he has been found guilty by a Court after a full dress trial of an offence punishable under law. But the detenue is detained on the grounds of his apprehended activities and because of subjective satisfaction recorded by the Detaining Authority that the activities of detenue are likely to be detrimental to the public order or security of the State. It is therefore necessary that the detenue is informed immediately after he is put under detention of the grounds that persuaded the Detaining Authority to slap detention order on him and also informed that he has a right to represent against his detention to the Detaining Authority and thereafter the Government. While the court approached by the detenue for quashment of the detention order may not look into the sufficiency of the grounds as what is required under law is the subjective satisfaction of the Detaining Authority, the court necessarily would see whether the detenue has been acquainted with the grounds of detention that lead to his preventive detention and further informed that he can make the representation against his preventive detention. While Article 22(3) (b) Constitution of India leaves room for detention under preventive detention law, Article 22(5) guarantees the aforestated two important safeguards to a person placed under preventive detention. The twin safeguards also find expression in section 13 of J&K Public Safety Act. The detenue therefore has following constitutional and statutory rights:
(i) To be communicated immediately after his detention the grounds on which the detention has been made.
(ii) Be afforded an earliest opportunity of making a representation against the order.
6. Let us see whether in the case on hand two precious and valuable constitutional and statutory safeguards have been made available to the detenue. When we examine the dynamics of right to be communicated the grounds on which order has been made we cannot but agree that the Detaining Authority has not to merely make available a copy of detention order or ground of detention but all the material referred to in such grounds. If communication of grounds of detention is held to mean supply of only the copy of grounds of detention without the background material, the right would be reduced to an idle formality. It is to be appreciated that constitutional and statutory safeguards are intended to attain an object object of facilitating a representation by the detenue against his preventive detention. In case the documents/ material referred to and relied upon in the grounds of detention is not made available to the detenue, the detenue would not be in a position to make an effective and meaningful exercise of the safeguards, guaranteed under the Constitution and the law.
7. The grounds of detention in the present case (annexure-C) refer to involvement of the detenue in case FIR No.45 of 2010 P/S Doda, under section 307/ 212/ 216/ 120B of RPC, 7/27 Arms Act and 19/20 Unlawful Activities Act, and case FIR No.85/2010 P/S Dehradun u/s 121-A/120-B IPC and FIR 13 of 2010 P/S Doda u/s E.S Act, 212 RPC 7/25/27 Arms Act. Perusal of detention record reveals that the copies of aforementioned FIRs or copies of statements under section 161 Cr.P.C recorded by the Investigating Officer or other material collected during investigation were not supplied to the detenue at the time of execution of the detention order. The endorsement on the reverse of the detention order recorded by the Executing Officer S.I Mashqoor Ahmad Giri No.045872/ P.S. Doda, does not record that any such copies were handed over to the detenue at the time of his arrest. The alleged involvement of the petitioner in the above criminal cases appears to have heavily weighed with the Detaining Authority while passing the detention order. The Detaining Authority in the circumstances was under constitutional and statutory obligation to provide copies of FIR and other material to the detenue so as to enable him to explain to the Detaining Authority and thereafter to the Government that he had nothing to do with the aforesaid criminal cases and was not at all involved in commission of the alleged offences. The respondents by withholding the important material have in effected violated detenues constitutional and statutory rights guaranteed under Article 22(5) Constitution of India and section 13 J&K Public Safety Act 1978.
8. The Constitutional and Statutory safeguards available to the detenue are to have flesh and blood only in case the grounds of detention communicated to the detenue are free from any ambiguity whatsoever. In case grounds of detention are vague, sketchy, ambiguous, the Detaining Authority cannot be held to have followed mandate of Article 22(5) Constitution of India and section 13 J&K Public Safety Act 1978 in letter and spirit. The detenue obviously would not be able to convince Detaining Authority and the Government that the grounds of detention are bereft of substance and apprehensions nursed regarding his activities, are grossly misplaced unless and until the grounds of detention relied upon by the Detaining Authority are clear and free from any ambiguity.
9. In the present case the detenue is alleged to have remained in close association of militants belonging to various outfits for last 5/6 years and to have remained a guide, sympathiser, OGW and harbourer of H.M and LeT outfits and also harbourer of H.M and LeT Militants in Labbar Marmat area time and again. The detenue is also alleged to have been allowing HM Divisional commander of Marmat to visit his house alongwith other militants time and again and used to inform the HM Divisional commander and his associates with regard to the movement of STF ad security forces, It is next alleged that the detenue motivated the youngsters to arrange food and shelter and timely information of the security forces in the Marmat area. The grounds set out irrefutably are vague unclear and sketchy. The detenue is not given particulars of militants whom he allowed to visit his house. The dates on which such visits were paid. The time and date(s) when the detenue informed the militants and who were the militants to whom information was transmitted about movement of security forces and the search operations conducted in the area. The detenue is not given particulars of the militants for whom he arranged safe passage or the youngster whom he motivated to arrange food and shelter and timely information of the security forces in the Marmat area and the militants for whom such food and shelter was asked to be arranged. In absence of such details the detenue would not be in a position to convince the respondents that he had nothing to do with the militants, had no role in transmitting information to the militants as regards movement of security forces and that he did not motivate any youngster of the area to organise food shelter and timely information for the militants.
10. The grounds of detention again refer to some acronyms like OGW, HM, LeT, POK, STF presuming that the detenue is aware of the meaning of these acronyms. Merely because the Detaining Authority is aware of the meaning of the acronyms or abbreviations or the words these stand for, does not entitle the Detaining Authority to presume that such meaning may necessarily be known to the detenue as well. The grounds of detention are not to be formulated in shorthand, or in a language of abbreviations or acronyms known to the Detaining Authority and communicated as such to the detenue. The detenue undoubtedly has been prejudiced by use of acronyms and abbreviations and deprived of his right to represent against his detention. Resultantly the constitutional and statutory safeguards available to the detenue have been violated.
11. Article 22(5) while requiring the Detaining Authority to offer the detenue an opportunity to represent against the detention order uses the expression earliest opportunity. It is pertinent to point out that in terms of section 8(4) J&K Public Safety Act 1978, the detention order remains in force for a period of 12 days and looses its force in case it does not find approval of the Government within the said period. The detenue is not to wait for the period of 12 days to make a representation to the Government and has a right to represent against his detention to the Detaining Authority immediately after he is put under detention. It is to be appreciated that nothing is more precious to an individual than his right to life and liberty and that every movement of life and liberty is precious to a person and a person detained under preventive detention law cannot be deprived of his right to represent against his preventive detention not even an hour nay a minute after his detention.
12. So viewed, the Detaining Authority is to inform the detenue immediately after he is put under detention that he has a right to represent against his detention, of course at that movement, to the Detaining Authority. Perusal of the record reveals that the detenue was not so informed in the present case. The detenue, as is evident from the record, was only informed that he may make a representation to the Govt. The respondents by their failure to inform the detenue that he had a right to represent against his detention, to the Respondent No. 2 as well have infringed petitioners constitutional and statutory rights.
13. For the reasons discussed above, the petition is allowed and the detention order No. DM/Doda/ PSA/2KXI/210- 17 dated 23.1.2011 passed by District Magistrate Doda, - respondent No.2 herein, is set aside. The detenue namely Shri Tanveer Ahmad s/o Lt. Sh. Mushtaq Ahmad R/o Labber Marmat, Tehsil and District Doda, is directed to be released in connection with detention order No. DM/Doda/ PSA/2KXI/210-17 dated 23.1.2011 passed by District Magistrate Doda.
Disposed of.
(Hasnain Massodi) Judge Jammu:
06.02.2012 G.Nabi P/S