Mashook Ahmad War vs State of Jammu & Kashmir and Others

Hasnain Massodi, Judge

Challenge to order No. 11-DMK/PSA of 2011 dated 14.07.2011, of District Magistrate, Kupwara-respondent No. 2 herein, whereby one

Shri Mashook Ahmad War son of Abdul Gani War resident of Chanjmulla, Tehsil Handwara, District Kupwara (herein after referred to as

detenue"") has been placed under preventive detention, must succeed for following reasons:-

Preventive detention as held in A.K. Gopalan Vs. The State of Madras, and reiterated in Rekha v. State of Tamil Nadu ( AIR 2011 SCW

2262) is by nature repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's 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 India permits preventive detention, we cannot hold it illegal, but we must confine the power

of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of

India, which was won after long ardous, historic struggle. It follows therefore that if law of land (Indian Penal Code and other penal statues) can

deal with the situation, recourse to the preventive detention law will be illegal.

The Court further 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 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.

The Court, making reference to law laid down in Kamleshwar Ishwar Prasad Patel v. Union of India and Others (1995) 2 SCC 51 (para 49),

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 the nature of alleged activities of the detenue.

The Court quoted with approval following observation made in Ratan Singh v. State of Punjab and others, 1981 (4) SCC, emphasising the need to

ensure that the Constitutional and Statutory safeguards available to a detenue 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

Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another, in following

words:

The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction

of the Detaining Authority. 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.

The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is

called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under

Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to.

Let us, now shift focus to the present case to see whether the procedural safeguards have been meticulously and strictly followed while ordering

preventive detention of petitioner.

The detenue appears to have been initially put under preventive detention vide order No. 27-DMK/PSA/of 2010 dated 24.11.2010. The

detention order was questioned in HCP No. 391/2010. The challenge succeeded and the detention order was quashed vide judgement dated 13th

May 2011. The detenue, though required to be released, was slapped with another detention order 11-DMK/PSA of 2011 dated 14.07.2011, as

pleaded in paras 02 and 03 of the petition.

The grounds of detention that lay foundation for the detention order in question are in substance same as were the grounds of detention pressed

into service while making the earlier detention order dated 24.11.2010. The detaining authority in grounds of detention intriguingly has relied upon

the grounds taken in the earlier detention order.

It is well settled law that when a detention order is quashed by the Court, the grounds of the order so quashed should not be taken into

consideration, either as whole or in part, even alongwith fresh grounds of detention for drawing subjective satisfaction to pass fresh detention

order. It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order. The Detaining Authority therefore

cannot consider the grounds that were relied upon to pass the earlier detention order or activities that were detailed in such grounds. The position

may be different where the earlier detention order is revoked due to technical reasons. In such a situation the grounds of detention may be used to

make fresh detention order after removal of technical impediment or loopholes. However, no such recourse is available where the earlier detention

order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. A reference

in this regard may be made to law laid down in, Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, ; Jabbarkhan Azadkhan v. State of

Gujarat; Masrat Alam Bhat v. State & Others, (SLJ 2003 (II) 570, 2010 (3) JKJ 282 [HC]); Mst. Zahida Vs. State of J. and K. and Others, ;

Alam Bhat (Masrat) Vs. State, .

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. The Detention

order makes mention of material record such as ""dossier and other connecting documents"" relied upon by the Detaining Authority while making

detention order. The detention order also makes reference to a communication No. Pross/Dossier/2011/1391-94 dated 20th June 2011, received

from Superintendent of Police, Handwara. The counter affidavit reveals that none of the documents referred to in the detention order was ever

supplied to detenue. The grounds of detention make reference to case - FIR No. 245/2010 u/s 7/25 A. Act and FIR No. 54/2006 u/s 7/25 Arms

Act, Police Station Handwara, claimed to have been registered against the detenue. The involvement of detenue in the aforementioned cases

appears to have heavily weighed with detaining authority while making detention order. The counter affidavit does not indicate that copies of

aforementioned First Information Reports, statements recorded u/s 161 Cr.P.C. and other material collected in connection with investigation of

aforesaid cases, were ever supplied to detenue. It is pertinent to point out that the detaining authority in the grounds of detention, after detailing

background, in which aforesaid cases were registered against detenue, proceeds to opine ""In view of the above facts, it is evident that your

activities are detrimental to the peace of the State"". The material, mentioned above thus assumes significance in the facts and circumstances of the

case. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights

guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material on which the

detention order is based, is supplied to detenue. It is only after the detenue has all said material available that he can make an effort to convince the

Detaining Authority and thereafter the Government that their apprehension as regards activities of detenue are baseless and misplaced. If the

detenue 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 the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders

detention order illegal and unsustainable. While holding so, I draw support from Dhananjoy Das Vs. District Magistrate, Darrang and Another, ;

Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, ; Union of India (UOI) Vs. Ranu Bhandari, ; Syed Aasiya Indrabi v. State of

Jammu and Kashmir and Others ( S.L.J. 2009 (I) 219, 2009 (3) JKJ 707 [HC]); and Thahira Haris etc. Vs. Government of Karnataka and

Others, .

Article 22(5), 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 detenue, on whom preventive detention order is slapped, is held

in custody without a formal charge and 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 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 the 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.

In the instant case the detenue is alleged to be hard core Over Ground Worker of ""L.e.T."" militant outfit, having its headquarters at ""PAK/POK"".

The detenue is not informed with sufficient clarity the organization with which the detenue is allegedly associated. The words/expressions, like

L.e.T"", ""PAK/POK"", are too vague to make the detenue aware of the exact accusation levelled against him. The detaining authority has not to

work on assumptions and presumptions that whatever acronyms it is aware of must be necessarily known to the detenue. The reference to the links

with terrorists of ""L.e.T. militant outfit"" is rendered meaningless in view of non-description of the organization with which the detenue is alleged to

be associated. It 'was incumbent upon Detaining Authority to give adequate information regarding identity of militants, with whom the detenue was

alleged to have associated to indulge in activities which are detrimental to the security of the State and public order. The detenue is alleged to have

managed ""Sim Cards"" and provided ""food and shelter"" to militants. The detenue has not been given details/numbers of Sim Cards, details of

person(s) from whom he acquired/managed the Sim Cards as also particulars of militants to whom the detenue is alleged to have provided Sim

Cards and food and shelter. It was incumbent upon the detaining authority to give adequate information regarding identity of militants, with whom

the detenue was alleged to have associated to indulge in subversive activities. The detenue only after getting the said information would have been

in a position to explain his stand and make an effort to convince the competent 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 detenue 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 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 v. The State of Delhi and others, AIR,

1953,; Chaju Ram Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, ; and Syed

Aasiya Indrabi v. State of J&K and others, 2009 (I) SLJ 2009 219, 2009 (3) JKJ 707 [HC].

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 the Government accorded its approval to the detention. 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

make a reference in this regard to the law laid down in State of Maharashtra and others v. Santosh Shanker Acharya, AIR, 2000 SC 2504.

Viewed thus, the petition is allowed and detention order No. 11-DMK/PSA of 2011 dated 14.07.2011, passed by the District Magistrate,

Kupwara - respondent No. 2, directing detention of Shri Mashook Ahmad War son of Abdul Gani War resident of Chanjmulla, Tehsil Handwara,

District Kupwara, quashed.

The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 11-DMK/PSA of

2011 dated 14.07.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. 11-

DMK/PSA of 2011 dated 14.07.2011.