Mohd. Saleem Wani vs State and Another

Gh. Hasnain Massodi, Judge

Challenge thrown through medium of instant petition, to order PSA-2010/29 dated 27/01/2010 whereby the District Magistrate Udhampur-

respondent no. 2 herein has ordered preventive detention of Shri Mohd. Saleem Wani son of Ghulam Rasool Wani resident of Hyderpura,

Achabal Tehsil and district Ananatnag (hereinafter referred to as detenue), is to succeed for the following reasons:

The respondent no. 2 vide detention order in question has ordered preventive detention of the detenue for a period of two years unmindful of

the fact that in terms of section 8(4) J&K Public Safety Act, 1978, the detention order is to remain in force for a period of 12 days after making

thereof, unless in the meantime it finds approval of the government. The respondent no.2 by ordering the detention of the detenue in the first go for

a period of two years has not only prejudged the representation, if any, made by the detenue against his detention, but also exhibited non-

application of mind and the mechanical manner in which the detention order has been made. The detention order for this lapse alone is liable to be

set aside.

The grounds of detention make mention of cases FIR no. 180/2004 U/S 457/380 RPC, FIR no. 18/2005 U/S 457/380 RPC and FIR no.

38/2005 U/S 341 /383 RPC alleged to have been registered and under investigation against the detenue at P/S Achabal Anantnag. It appears that

the aforementioned cases and the results of the investigation have weighed with the respondent no. 2 at the time the detention order in question was

made. The detention record does not reveal that the copies of FIRs or the material collected during investigation of the aforementioned cases were

at the; time of the execution of the 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) of the Constitution of India and Section 13 of 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 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 cannot 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.L.J 219; and Thahira Haris etc. Vs. Government of Karnataka and Others, .

Article 22(5) of Constitution of India guarantees a precious and valuable right to a person detained under preventive detention law -- J&K

Public Safety Act 1978 in the present case, 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 to maintenance of the public. Article 22(5) of the Constitution and

section 13 of the Act, make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making a 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

apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right

available to the detenue meaningful, it is necessary that the detenue be informed with all possible clarity what is/are apprehended activity/ies that

persuaded the 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 grounds of detention that appear to have persuaded the respondent no. 2 to order preventive detention of the detenue,

accuse the detenue of having indulged in commission of offence ""like burglary, theft and extortion"", and thereby ""creating scare, panic and fear

among the general public"" and to have ""threatened peace loving people with death and injury and thereby dishonestly induced the innocent people

in fear to deliver any kind of property and valuable security."" The grounds of detention do not convey the details of occurrences for which the

detenue is alleged to have been responsible, the particulars of the property looted and extorted and the particulars of the victims of the alleged

occurrences. The detenue is alleged to have at the instance of one Fayaz Ahmad held a meeting with ""one lady wearing Burka and received a pistol

from her."" However, the detenue is not informed about the particulars of the lady or the pistol handed over to the detenue by the lady. The detenue

was to be given the details of the alleged occurrences as also the particulars of the persons with home he is alleged to have associated or received

arms/ammunitions from, so as to enable the detenue to convince the respondent no. 2 and other respondents that the allegations against the

detenue were baseless and that the detenue had neither indulged in any burglary and other offences, nor met the lady or to have been acquainted

with the lady. The detenue in the like manner is alleged to have in the month of September 2008 snatched a Maruti car from a medical shop owner

and repeated the offence in the month of October 2008. The detaining authority has not found it necessary to acquaint the detenue with the shop

keeper/car owner's names from whom the detenue allegedly snatched the vehicles. The detenue in absence of such details could not be expected

to have been in a position to give his side of the story and persuade the respondent no. 2 and other respondents that the allegations against the

detenue were bereft of any basis. To sum up, the grounds of detention that constitute basis for the detention order in question are ambiguous,

vague, uncertain and hazy. No person of ordinary prudence would be in a position to explain his stand in reply to the grounds of detention detailed

by the respondent No. 2. The detenue has been kept guessing about the facts and events that weighed with the respondent No. 2 and prompted

the respondent No.2 to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of the detenue.

These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue unclear about

what really was intended to be conveyed by the Detaining Authority. 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.

The respondent no. 2 in the concluding para of the grounds of detention claims to be satisfied that the activities of the detenue ""are anti-national,

subversive and highly prejudicial to the public order, public safety and the security of the state."" The conclusions drawn by respondent no. 2 that

the detenue is an active militant of HM outfit, the activities of detenue are anti-national, subservice and highly prejudicial to the public order, public

safety and the security of the state and that release of detenue on bail will jeopardize public safety, public order and security of the state. It is

pertinent to point out that the law makers in their wisdom have identified ""security of state ""and"" maintenance of public order"" as the only grounds

on which the respondent no. 2 can make a preventive detention order. Other grounds like smuggling timber or liquor, etc, set out in Section 8(1)

(a-1) are not relevant to the present controversy. The respondent no. 2 thus cannot order preventive detention on the grounds like anti-national,

subservice or activities against public safety. These activities do not find place in section 8(1) (a-1) of the Act. The grounds of detention, thus, run

contrary to the letter and spirit of law laid down in section 8 of the Act and render the whole exercise undertaken by respondent no.2 mechanical

and without application of mind.

The detaining authority 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 his detention was considered by the government and approved.

The detaining authority, 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, .

The non-application of mind also comes across in government order no. Home/PB-V/551/2010 dated 15/03/2010 whereby in exercise of

powers u/s 17(1) of J&K Public Safety Act, 1978, the detention order has been confirmed and the detenue directed to be detained for a period of

24 months and lodged in central jail Kot-Bhalwal. The government order in question is made in respect of ""Shri Sameer Ahmad Wani"" and not the

detenue though the name of the detenue figures in the detention order as also the order of State Advisory Board dated 24 February 2010. The

mechanical approach adopted by the government makes a serious dent in the detention order and casts cloud on the authority of respondent to

continue with the detention of the detenue.

Viewed thus, the petition is allowed and the detention order No. PSA-2010/29 dated 27/01/2010 passed by the District Magistrate Udhampur,

respondent no. 2, directing detention of Mohd. Saleem Wani son of Ghulam Rasool Wani resident of Hyderpura Achabal Tehsil and district

Ananatnag is quashed. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order

no. PSA-2010/29 dated 27/01/2010. Resultantly the respondents are directed to release the detenue from preventive detention.