Jammu & Kashmir High Court - Srinagar Bench
Ubaid Tariq Antoo vs Union Of India And Others on 22 August, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No. 52 of 2013 Ubaid Tariq Antoo Petitioners State of J&K and others Respondents !Mr.Tufail, Advocate Mr. M. A. Qayoom, Advocate ^Mr. T. A. Lone, Deputy Advocate General Honble Mr. Justice Tashi Rabstan, Judge Date: 22/08/2013 : J U D G M E N T :
1. One Shri UbaidTariq Antoo @ Billa @ Faris son of Tariq Ahmad Antoo @ Mitha resident of Kraltang Sopore District Baramula (hereinafter referred to as detenu) has approached this Court seeking quashment of Order No.01/DMB/PSA/2013 dated 2nd May 2013, passed by District Magistrate, Baramulla (for short detaining authority) whereby detenu was ordered to be detained under Section 8 of Jammu and Kashmir Public Safety Act, 1978, on various grounds.
2. The Detaining Authority and the State Government were allowed several opportunities to respond to the motion. They have, however, opted not to file any response to the petition.
3. Detention record, however, has been made available by learned Deputy Advocate General.
4. Heard learned counsel for the parties at length and considered their submissions and have gone through the record.
5. Preventive detention as held in A.K.Gopalan v. State of Madras [1950SCR 88] and reiterated in Rekha v. State of Tamil Nadu [AIR2011 SCW 2262] is by its very nature repugnant to democratic ideals and an anathema to the rule of law. The Supreme Court in Rekhas case (supra), while emphasising that Article 22(3)(b), Constitution of India, is to be read as an exception to Article 21, Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later,observed:
Since however, Article 22 (3)(b) of the Constitution of Indiapermits preventive detention, we cannot hold it illegal, butwe must confine the power of preventive detention to verynarrow limits, otherwise we will be taking away the greatright to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic struggle. Itfollows therefore that if law of land (Indian Panel Code and other penal statues) can deal with the situation, recourse to the preventive detention law will be illegal.
6. The Court further observed:
It must be remembered that in case of preventive detentionno offence is proved and the justification of such detentioncase is suspicion or reasonable probability, and there is noconviction 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 theright to be produced before a Magistrate within 24 hours ofarrest. To prevent misuse of this potentially dangerouspower the law of preventive detention has to be strictlyconstrued and meticulous compliance with the proceduralsafeguards, however, technical, is, in our opinion,mandatory and vital.
7. In KamleshwarIshwar Prasad Patel Vs Union of India and Others [(1995) 2 SCC 51] the Supreme court observed:
The history of liberty is the history of procedural safeguards.These procedural safeguards are required to be zealouslywatched and enforced by the Court and their rigour cannotbe allowed to be diluted on the basis of the nature ofalleged activities of the detenue.
8. Law on the subject was succinctly laid down by the Apex Court inAbdul 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 gobehind the subjective satisfaction of the DetainingAuthority. The procedural requirements are, therefore to bestrictly complied with if any value is to be attached to theliberty of the subject and the Constitutional rightsguaranteed to him in that regard.
9. The baseline, that emerges from the above overview of case lawon the subject of preventive detention is that whenever preventivedetention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteedunder Article 22(5) Constitution of India and Preventive Detention Lawpressed into service to slap the detention, are adhered to.
10. The Constitutional and Statutory safeguards guaranteed to a person detained under preventive detention law are meaningless unlessand until the detenu is made aware of and furnished all the material thatweighed with the detaining authority while making detention order. In the present case theDetention order makes mention of the material record such as dossier and other connecting documents relied upon by the Detaining Authority while making detention order. The detention order makes mention of a communication No.PROSS/PSA/2013/5362 dated 01.04.2013, received from Superintendent of Police, Sopore. The detention record,made available by learned Deputy Advocate General,reveals that none of the documents referred to in the detentionorder was ever supplied to the detenu. The grounds of detention makereference to case - FIR No.315/2010 under Section 147, 427 RPC P/S Sopore; FIR No.470/2010 under Section 307, 148,336,427 RPC P/S Sopore; FIR No.75/2011 under Section 307 RPC, 7/27 I.A. Act P/S Sopore; FIR No.78/2011 under Section 307 RPC 7/27 Arms Act P/S Sopore; FIR No.250/2012 under Section 7/25 Arms Act P/S Sopore, claimed to have been registered against the detenu. The involvement of detenu in the said cases appears to have weighed with Detaining Authority while making detention order. The detention record does not indicate that copies of above First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenu. The material, mentioned above thus assumes significancein the facts and circumstances of the case. It needs no emphasis, thatthe detenu cannot be expected to make a meaningful exercise of hisConstitutional and Statutory rights guaranteed under Article 22(5),Constitution of India and Section 13, J&K Public Safety Act, 1978, unlessand until the material on which the detention order is based, is suppliedto detenu. It is only after the detenu has all said material available thathe can make an effort to convince the Detaining Authority and thereafterGovernment that their apprehension concerning activities of detenuare baseless and misplaced. If the detenu is not supplied material, onwhich the detention order is based, he cannot be in a position to make aneffective representation against his detention order. The failure on thepart of the Detaining Authority to supply the material relied at the time of makingdetention order to the detenu, renders detention order illegal andunsustainable. While holding so, reference may be made to law laid down in Thahira Haris Etc. Etc. v. Government of Karnataka [AIR 2009 SC 2184]; 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].
11. Article 22(5), Constitution provides a precious and valuable right toa person detained under preventive detention law - J&K Public Safety Act1978, to make a representation against his detention. It needs noemphasis that a detenu, on whom preventive detention order is slapped, is held in custody without a formal charge and trial. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or maintenance of public order. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenu earliest opportunity of making an effective and meaningful representation against hisdetention. The object is to enable the detenu to convince the DetainingAuthority and the Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenu cannot be expected to make a representation against his detention.The grounds of detention reveal that the detenu is alleged to have been providing logistic support to active militants operating and also providing them regular information regarding movement of police and security forces. The detenu has not been given particulars of militants to whom the detenu is alleged to have been providing logistic support and regular information as regards movement of police and security forces. It was incumbent upon the detaining authority to give adequateinformation regarding identity of militants, with whom thedetenu was alleged to have associated to indulge in subversiveactivities. The detenu only after getting the said information would havebeen in a position to explain his stand and make an effort to convince thecompetent authority that his preventive detention was unwarranted. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenu guessing about what really was intended to be conveyed by the detaining authority. It is well settled law that even where one of the grounds relied upon by the detaining authority to order detention is vague and ambiguous,Constitutional and Statutory right of the detenu to make a representationagainst his detention are taken to have been violated.Reference in this regard may be made to State of Maharashtra and others v. Santosh Shankar Acharya [AIR 2000 SC 2504];Chaju Ram v. State of J&K [AIR 1971 SC 263]; Dr.Ram Krishan v. The State of Delhi & ors.[AIR 1953SC 318]; Mohd Yousuf Rather Versus State of J&K [AIR 1979 SC 1925]; and Ghulam Nabi Shah v. State of J&K & others [2005(I) SLJ 251].
12. For the afore-stated facts, reasons and the law, the petition is allowed and detention order No. No.01/DMB/PSA/2013 dated 2nd May 2013, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of ShriShri UbaibTariq Antoo @ Billa @ Faris son of Tariq Ahmad Antoo @ Mitha resident of Kraltang Sopore District Baramula, quashed.The res- pondents, in view of quashment of detention order, are stripped of any authority to detain the detenu under order No.01/DMB/PSA/2013 dated 2nd May 2013. Resultantly, the respondents are directed to release the detenu from preventive detention, ordered vide order No. No.01/DMB/PSA/2013 dated 2nd May 2013.
13. Disposed of.
14. Detention record be returned to the counsel for respondents.
( Tashi Rabstan) Judge Srinagar 22/08/2013 Ajaz Ahmad