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Judgment
Gh. Hasnain Massodi, Judge
The jurisdiction conferred on the Government and its officers under a prevention detention law is aptly described as ""jurisdiction of suspicion"".
The preventive detention unlike punitive detention or detention/custody pending trial, is based on mere suspicion nursed by the Detaining Authority
that the detenue if not detained may indulge in activities likely to endanger the very foundation of the society, that post event responses would not
deter the detenue from pursuing his alleged activities and that preventive detention is the only option. There is neither any charge nor any trial in
case of preventive detention. Resultantly there is no determination of guilt of the detenue before the detenue is placed under detention. It is for the
said reason that the ""preventive detention laws"" have been held to be ""repugnant to democratic constitution"". The preventive detention laws though
called a ""sinister looking feature"" out of a place in a democratic constitution"" have become part of the statute book. The law enforcing agencies
having regard to incompatibility of preventive detention laws with the very edifice on which a democratic polity is bedrocked, are expected to
make use of Part IV of Code of Criminal Procedure titled ""Prevention of Offences"" and ordinary penal laws to deal with crimes -- apprehended or
committed and the person(s) suspected likely to commit or alleged to have committed an offence. The law makers in their wisdom have
categorized offences into bailable offences and non bailable offences depending upon how grave and heinous the offences are and sub categorized
the non bailable offences into offences punishable with ""life imprisonment or death"" and the offences punishable with sentence other than life
imprisonment or death. It is always open to the law enforcing agency to make an endeavour to persuade the court not to grant bail to an accused in
custody, who in the opinion of the law enforcing agency, may in the event of bail repeat the offences, thwart investigation or obstruct trial or must
be denied bail in the public interest, instead of taking recourse to preventive detention law, as the easiest course and slap, preventive detention on a
person already in custody on a criminal charge.
The preventive detention law like an unconventional weapon in arsenal of an army is to be used very rarely to meet an extra ordinary situation.
Again, preventive detention is not a solution in itself. It is an extraordinary response to an extraordinary situation. It is a short term measure and a
person cannot be put under preventive detention endlessly or for a prolonged period of time. This is the reason that the legislature has fixed a cap
on the maximum period a person can be put under preventive detention. In terms of J&K Public Safety Act, the maximum period of preventive
detention where apprehended activities are prejudicial to the ""Security of the State"" is two years and in all other cases such maximum term is one
year. Notwithstanding the permissible time limits of preventive detention, it has to go through the screening stages contemplated' by section 8(4)
and section 17 J&K Public Safety Act. The successive detention orders are permissible only on fresh facts and material, that have arisen after the
expiry of first detention order. In the event it become inevitable for the law enforcing agency to invoke preventive detention law, the constitutional
and statutory safeguards are to be observed in letter and spirit without any failure. The courts from the very date preventive detention laws found
place in statute book, have frowned upon any attempt to dilute the mandate of Article 22 of the Constitution of India. Supreme Court in Dr. Ram
Krishan Bhardwaj Vs. The State of Delhi and Others, observed :
Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper
exercise of the power must be jealously watched and enforced by the Court.
The Apex Court in Dhananjoy Das Vs. District Magistrate, Darrang and Another, , spelt out the constitutional and statutory rights available to a
detenue as under:
The law is by now well settled that the detenue has two rights under Article 22(5) of the Constitution: (1) to be informed, as soon as may be of the
grounds on which the order of detention is made, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to
be afforded the earliest opportunity of making representation against the order of detention, that is to be furnished with sufficient particulars to
enable him to make representation which on being considered may obtain relief to him.
The Apex Court and High Courts have lost no opportunity to insist on strict observance of constitutional and statutory safeguards. The Supreme
Court in Union of India v. Chaya Ghoshal (2005) 10 SCC 1997 observed:
the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is
mandatory.
The petitioner, through medium of instant petition assails order No. 117/DMB/PSA of 2009 dated 29.12.2009 passed by District Magistrate
Bandipur -- Respondent No. 2 in the petition, whereby the petitioner's brother Shri Mohammad Ahsan Dar S/o Mohammad Subhan Dar R/o Sari
Warpora, Pattan (hereinafter referred to as detenue), has been placed under preventive detention on the grounds that the constitutional and
statutory safeguards guaranteed to the detenue have been violated by the respondents, rendering preventive detention of the detenue liable to be
set aside. The detenue admittedly has been arrested by P/S Sumbal on 14.1.2009 in connection with case FIR No. 12/2009 u/s 121 RPC, 13
ULA Act. The respondent No. 2, while the detenue was in custody in aforementioned case, placed the detenue under preventive detention vide
order No. 271/DMB/PSA of 2009 dated 24.3.2009. The detenue called in question, the detention order. The Habeas Corpus Petition was
allowed and the detention order quashed by this Court on 6.11.2009. It was held that the Detaining Authority had failed to indicate the compelling
reasons to slap preventive detention on the detenue while the detenue was in custody in connection with FIR No. 12/2009 (supra).
The detenue was not released after the aforementioned detention order was quashed. The respondent No. 2 instead passed fresh detention
order No. 117/DMB/PSA of 2009 dated 29.12.2009. The detenue thus is in custody since 14.1.2009. The detention order is impugned on the
grounds that the order depicts non application of mind in as much as the respondent No. 2, has as the grounds of detention relied upon to order of
detention of the detenue vide No. 1 17/DMB/PSA/2009 dated 29.12.2009 reproduced verbatim the grounds of detention pressed into service in
support of earlier detention order. The respondent No. 2 is said to have ordered detention of the detenue for a period of one year little realizing
that the detention order in terms of section 8(4) of the Jammu and Kashmir, Public Safety Act was to survive for a period of 12 days unless it
found confirmation of the Government. The respondents, it is alleged failed to furnish copies of the documents relied upon by the Detaining
Authority while passing the detention order. It is insisted that Detaining Authority had no compelling reasons to order preventive detention of the
detenue in as much as mere filing of bail application was not to lead to the apprehension that the detenue may obtain bail. The respondents in their
counter affidavit have reproduced word by word the grounds of detention stated to have prompted the respondent No. 2 to order preventive
detention of the detenue. The respondents have controverted all other averments made in the petition.
Heard and considered.
The detention order, called in question in the present petition, is liable to be set aside and petition bound to succeed for the following reasons:-
1) The respondent No. 2 has ordered preventive detention of the detenue for a period of one year and directed him to be lodged in District Jail
Udhampur. The respondent No. 2 while making the detention order has lost sight of section 8(4) of the jammu & Kashmir Public Safety Act 1978.
In terms of aforesaid provisions the detention order made by the officer mentioned in section 8 (2) PSA is to remain in force for 12 days after the
order is made, unless in the meantime the order finds approval of the Government. The respondent No. 2 by ordering detention of the detenue for
a period of one year, has not only closed doors for the detenue to make a representation against his detention but also violated mandate of law.
The respondent No. 2 by fixing the period of detention on the very day the detention order was made, has exhibited non application of mind and
confirmed the apprehension of the detenue that the order was made in a mechanical manner. It is pertinent to point out that the least, the
Constitution guarantees the detenue, is that the detenue shall have right to make representation against his detention to the competent authority even
on the day the detention order is executed. The detenue has a constitutional right to convince the Detaining Authority that there is no reason to
apprehend that the activities of the detenue shall prejudice the ""maintenance of public order"" or ""security of State"". The Detaining Authority by
fixing the period of detention before the detenue could even think of making, a representation against his detention, has violated the safeguards
guaranteed under Article 22 of the Constitution of India and section 13 of the J&K Public Safety Act.
2) The grounds of detention make mention of case FIR No. 2 of 1993 P/S CIK, Srinagar and case FIR No. 12/2009 u/s 121 RPC, 13 ULA Act,
alleged to have been registered against the detenue. It appears that involvement of the detenue in aforementioned cases weighed heavily with the
respondent No. 2 while making the detention order. The detention record does not indicate that the copies of aforementioned FIR's or the material
collected during the investigation, was supplied to the detenue so as to enable the detenue to exercise his constitutional and statutory rights
guaranteed u/s 22 (5) Constitution of India, section 13 of the 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 the
said material available that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that their
apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied the material on which the detention
order is edificed, 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 the detention order, renders the 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 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 2009 (I) S.LJ 219; and Thahira Haris etc. Vs. Government of Karnataka and Others, .
3) The detenue under Article 22(5) of the constitution of India and section 13 of the PSA Act, has not only a right to be communicated, as soon as
possible the grounds that prompted the Detaining Authority to order preventive detention but also to be afforded an earliest opportunity to make a
representation against the order of detention. In order to make the safeguard guaranteed under the constitution and the preventive detention law
meaningful, it is necessary that the detenue is informed with sufficient clarity, what exactly prevailed upon the Detaining Authority while the
detention order was made. In case the grounds of detention are vague, sketchy and general the detenue cannot be expected to make an effective
and meaningful use of constitutional and statutory rights guaranteed and project his case before the Detaining Authority or the Government as the
case may be. Where the grounds of detention are unspecific, vague and too general the right of detenue to make representation against the
detention is infringed and his fundamental rights violated. In the present case most part of the grounds of detention narrates the events of childhood
of the detenue, his education and details of his employment and thereafter his having got associated with the alleged subversive activities. The
grounds of detention after recapitulating activities of the detenue stretching over a period of 2 and a half decades details the immediate case for
slapping preventive detention on the detenue as under: ""You have criminal bent of mind. You have been working for the terrorist outfit. There is
also apprehension that you can reactivate yourself in militancy at any stage and carry out subversive activities. Further, there are possibilities of
your association with ANEs across the Border and providing them vital inputs related to the security of the State.
A bare look on the above reproduced grounds leads to the irresistible conclusion that the Detaining Authority has failed in its duty to spell out with
reasonable and adequate clarity the reasons that prompted the Detaining Authority to order preventive detention of the detenue. The grounds are
vague, general and ambiguous. The detenue is said to have a criminal bent of mind. The detenue is said to be capable of reactivating militancy and
carry out subversive activities at any time. The Detaining Authority is of the opinion that there are possibilities of association of detenue with ANEs
across the border. How can a person of ordinary prudence convince the Detaining Authority that he does not have a criminal bent of mind unless
activities indicating such bent of mind are catalogued with sufficient clarity and how can detenue convince that he has no plans to associate with
ANEs, when the detenue is not told what the alphabets ANEs stand for
The grounds are too vague to enable a person of ordinary prudence to respond in meaningful manner and convince that the grounds are baseless.
The Detaining Authority surprisingly in the detention order in question claims that the grounds of detention have been placed before the Detaining
Authority by the Sr. Superintendent of Police vide his No. CRB/PSA/09/19592-93 dated 24.12.2009. The respondent No. 2 does not seem to
be aware that the Superintendent of Police is to merely give his inputs and information to the Respondent No. 2 and it is for the Respondent No. 2
to formulate the grounds of detention and thereafter take action in the matter.
The grounds of detention thus leave the detenue guessing about the exact omissions and commissions attributed to him.
It is well settled law, that even where one amongst various grounds of detention is vague and ambiguous, the detention order is bound to bet set
aside. A 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.
(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 right to submit a representation to the Detaining Authority till the detention was considered by the
Government and approved. The respondent No. 2 has in effect violated Constitutional and Statutory rights of the detenue, guaranteed under
Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the
law laid down in State of Maharashtra and Others Vs. Santosh Shankar Acharya, .
(5) The respondent No. 2 has slapped preventive detention on the detenue vide order No. 117/DMB/PSA of 2009 dated 29.12.2009 while the
detenue was under detention under the detention order quashed by this Court, on the same grounds that were pressed into service to make the first
detention order. It is pertinent to point out that first detention order was not quashed on technical grounds but for the reason that no compelling
grounds were set out to order detention. In the circumstances, it was not open to the respondent No. 2 to place reliance on the same grounds to
pass second detention order..
For the reasons discussed the detention order No. 117/DMB/PSA of 2009 dated 29.12.2009 is quashed. The respondents are stripped of
authority to detain the detenue under order No. 1 17/DMB/PSA of 2009 dated 29.12.2009. So viewed the detenue is directed to be forthwith
released from the preventive detention under the quashed detention order.
Disposed of.