Back
2011 Supreme(J&K) 74
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Javid Ahmad Kundoo -Appellant
Versus
State of J&K and others -Resopndent
HCP No. 336 of 2010
Decided On : 28-02-2011
The detenue must be informed with all possible clarity about the apprehended activities that persuaded the Detaining Authority to make the detention order, and vague, ambiguous, and confusing grounds of detention violate the detenue's rights to make a representation against his detention.
Headnote:
Detention - Constitutional and Statutory Rights - Article 22(5), Constitution of India - Section 13, J&K Public Safety Act 1978 - 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 Cri L. J. 4567; Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others 2009 (I) S.L.J 219; Tahir Haris versus State and Others AIR 2009 SC 2184 - Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law to make a representation against his detention. It needs no emphasis that a detenue, on whom preventive detention order is slapped, is held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or maintenance of the public order. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenue earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable detenue to convince the Detaining Authority 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 detenue meaningful, it is necessary that detenue 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 detenue cannot be expected to make a representation against his detention.
Fact of the Case:
The petition challenges the preventive detention of the detenue under order No. DMS/PSA/78/2010 dated 25th September 2010, on the grounds of violation of Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act 1978.
Finding of the Court:
The detention order is liable to be quashed as the detenue was not furnished with all the material that weighed with the detaining authority while making the detention order, rendering the detention illegal and unsustainable.
Issues: Violation of Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act 1978.
Ratio Decidendi: The detenue must be informed with all possible clarity about the apprehended activities that persuaded the Detaining Authority to make the detention order. Vague, ambiguous, and confusing grounds of detention violate the detenue's rights to make a representation against his detention.
Final Decision: The petition is allowed, and the detention order No. DMS/PSA/78/2010 dated 25th September 2010 is quashed. The respondents are directed to release the detenue from preventive detention.
Hon'ble Mr. Justice Hasnain Massodi, Judge
1. Challenge in this petition is to order No. DMS/PSA/78/2010 dated 25th September 2010,of District Magistrate, Srinagar respondent No. 2 herein, whereby one Shri Javid Ahmad Kundooson of Habibullah Kundooresident of Manz Mohalla, Anchar, Soura, District Srinagar(herein after referred to as 'detenue') has been placed under preventive detention and his lodgment directed in Kote-Bhalwal Jail, Jammu.
2. The preventive detention of the detenue is questioned on the grounds that the respondents while detaining the detenue have violated his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act 1978.
3. The respondents have, in their counter affidavit, disputed the averments made in the petition. The detention order is said to have been approved by State Advisory Board and also by the Government vide No. Home/PB-V/2592/2010 dated 13.11.2010.
4. Heard, perused and considered.
5. The detention order is liable to be quashed for the following reasons: -
1. 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 detention order. In the instant case, grounds of detention as well as detention order in question make mention of case FIR No. 80/2010; and FIR No. 87/2010, registered at Police Station Sour against the detenue. It appears that the said case(s) have weighed with detaining authority at the time detention order in question was made. Copies of First Information Report(s), statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s) has not been furnished to detenue. It is pertinent to point out that the respondent No. 2 in grounds of detention, after detailing the 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 public order". The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention order or grounds of detention do not reveal that copies of FIRs or material collected during investigation of the aforementioned case(s) 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 Cri 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 SC 2184.
