Jammu & Kashmir High Court
Abdul Rashid vs District Magistrate Air on 18 September, 2010
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. HCP No. 42 OF 2009 Abdul Rashid Petitioners State of J&K and others Respondent !Mr. K.K. Razdan, Adv ^Mr. Gagan Basotra,AAG HONBLE MR. JUSTICE HASNAIN MASSODI Date: 18.09.2010 :J U D G M E N T :
Petition is admitted to hearing. The pleadings are complete and on consensus of learned counsel for the parties, the petition is taken up for final disposal.
Challenge in this petition is to order No.PSA/2009/10 dated 23rd November 2009, whereby District Magistrate, Reasi respondent No.2 herein, has ordered preventive detention of Shri Abdul Rashid Sheikh son of Ghulam Ahmed Sheikh resident of Village Bangam Gulabgarh Tehsil Mahore District Reasi (herein after referred to as detenue) for a period of 24 months and directed his lodgment in Central Jail, Kote Balwal, Jammu.
I have gone through the petition and counter affidavit filed by the respondents. I have heard learned counsel for the petitioner as also learned Additional Advocate General, appearing for respondents.
The petition must succeed for the following reasons:-
1. The respondent No.2 has, at the very threshold, ordered detention of detenue for a period of 24 months. The respondent No.2 a senior officer in the State Administration, is expected to be aware that the detention order made under Section 8(1) of J&K Public Safety Act read with Sub Section (2) is to survive in terms of Section 8 (4) of J&K Public Safety Act, 1978, for a period of 12 days, unless within said period detention order finds approval of the Government. The respondent No.2 by placing the detenue under preventive detention for a period of 24 months in one go has not only trespassed over the powers of the Government but closed all doors for the detenue to make a representation against preventive detention. It needs no emphasis that a detenue, under Article 22 (5) Constitution of India and Section 13 of the J&K Public Safety Act, has a valuable right to make a representation against his detention to the Detaining Authority, immediately after the detention is made and thereafter to the Government. The detenue has a right to convince the Detaining Authority that the activities attributed to him and apprehended are devoid of any substance; that the detenue is a peace loving citizen and there is no reason to apprehend that his acts of omission and commission in any manner are prejudicial and detrimental to the security of the State. Once the Detaining Authority orders detention for 24 months, the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation against his preventive detention. The Detaining Authority by deciding on the period of detention at the initial stage, has violated Constitutional and Statutory rights of the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act. The detention order is liable to be quashed on this ground alone.
2. The constitutional and statutory safeguards, guaranteed to a person detained under preventive detention law, are meaningless unless and until the detenue is made aware of and furnished all the material that weighed with the detaining authority while making the detention order. In the instant case the grounds of detention as well as detention order in question make mention of case FIR No.27/2009 under section 302/307 RPC and 7/27 Arms Act Police Station Mahore, and case FIR No.30/2009 under section 212/216 RPC, registered at Police Station Mahore against the detenue. It appears that the said cases have weighed with the respondent No. 2 at the time detention order in question was made. The grounds of detention and counter affidavit do not reveal that the copy of FIR or the material collected during investigation of the aforementioned cases was at the time of execution of detention warrant or immediately thereafter made available to the detenue, to enable him to exercise his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978. The Constitutional and Statutory Safeguards are meaningless unless and until the material on which the detention order is based is supplied to the detenue. It is only after the detenue has all said material available that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that their apprehensions as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the detention order is based, the detenue would not be in a position to make an effective representation against his detention. The failure on the part of Detaining Authority to supply the material relied at the time of making detention order, renders detention illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression in Dhannajoy Dass versus District Magistrate AIR, 1982 SC 1315; Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others AIR, 1999, SC 3051; Union of India versus Ranu Bhandari, 2008, Cr. L. J. 4567; Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others 2009 (I) S.L.J 219; and Tahir Haris versus State and Others AIR 2009 Supreme Court 2184.
3. The grounds of detention are vague and bound to have left the detenue, guessing about the reason(s), why the preventive detention was slapped on the detenue. The right to file representation against detention order has been interpreted to include the right to be informed of the grounds of detention with sufficient clarity and details. If the grounds of detention are sketchy, general and ambiguous, the detenue would not be in a position to make an effective and meaningful exercise of his right to file representation against detention. It is only when the grounds are clear and unambiguous that the detenue would be in a position to explain his stand and try to dispel the apprehensions nursed by the Detaining Authority regarding the apprehended activities of the detenue, that in the opinion of the Detaining Authority are prejudicial to the security of the State. 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 rights of the detenue to make a representation against his detention are taken to have been violated. Reference in this regard may be made to Dr.Ram Krishan Versus The State of Delhi and others, AIR, 1953,; Chaju Ram Versus State of J&K, AIR 1971 SC 263; Mohd Yousuf Rather Versus State of J&K, AIR 1979 SC 1925; and Syed Aasiya Indrabi Versus State of J&K and others, 2009 (I) SLJ 2009 219.
4. The Detaining Authority respondent No.2 did not inform the detenue that the detenue, independent of his right to file representation against his detention to the Government, has also a right to submit a representation to the Detaining Authority till the detention was considered by the Government and accorded approval. The respondent No.2 has thus violated Constitutional and Statutory rights of the detenue, guaranteed under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act. It would be apt to refer to the law laid down in State of Maharashtra and others versus Santosh Shanker Acharya, AIR, 2000 SC 2504.
Viewed thus, the petition is allowed and detention order No. PSA/2009/10 dated 23.11.2009, passed by the District Magistrate Reasi respondent No. 2, directing detention of Shri Abdul Rashid Sheikh son of Ghulam Ahmed Sheikh resident of Village Bangam Gulabgarh Tehsil Mahore District Reasi, is quashed. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. PSA/2009/10 dated 23.11.2009. Resultantly, the respondents are directed to release the detenue from preventive detention.
(Hasnain Massodi) Judge Jammu . .2010 Ajaz Ahmad