Syed Ali Shah Geelani vs State and others

Hasnain Massodi, Judge

A person detained under preventive detention law is held in custody without formal charge and trial. The detenue, in the circumstances, is not in

a position to deny the charge, cross- examine the prosecution witnesses, take a stand as regards the incriminatory material, if any, against him, and

adduce evidence in defence to convince the court that the charge leveled against him is devoid of any substance. Against the said backdrop, the

preventive detention order warrants a hard look from the court so as to examine whether meagre safeguards, whatever available under the

Constitution and the preventive detention law to the detenue are adhered to and followed in letter and spirit. In the case on hand a closer look at

the detention record reveals that the safeguards available to the detenue under Article 22 (5) Constitution of India and Section 13 J&K Public

Safety Act, have been observed in breach. Resultantly, the order impugned in the petition cannot stand legal scrutiny. Reasons that must persuade

the court to allow the petition are as under:

The grounds of detention have been prepared and authored by District Magistrate, Srinagar' detaining authority' respondent no. 2 in the petition,

on 23rd June 2010. However, the detention order has been made on 22nd June 2010 and the order endorsed to different Authorities on the said

date. It is thus amply clear that the grounds of detention were not available to the detaining authority on the day and date the detention order was

slapped on the detenue. The argument advanced by learned Deputy Advocate General that the error should be treated as a clerical error is

specious and without any merit. Needless to mention that the respondents in their reply also insist that the order of detention was made on 22nd

June 2010 and not 23rd June 2010 as is claimed by the learned counsel for the respondents. The detention order in the circumstances has been

made in a mechanical manner and is liable to be set aside on this ground alone

The detaining authority while recording subjective satisfaction as regards necessity to place the detenue under preventive detention has referred

to a number of criminal cases against the detenue pending in different police stations of Srinagar, Anantnag, Doda, Beerwa, Pattan, etc. The

detention record made available by Mr. Shah, learned DAG, does not indicate that the copies of the FIRs or the material collected during

investigation by the investigating officers was made available to the detenue at the time of the execution of the detention order or immediately

thereafter. Needless to state that alleged involvement of the detenue in the cases referred appears to have weighed heavily with the detaining

authority while recording satisfaction that the detenue was required to be placed under preventive detention so as to prevent him from acting in any

manner prejudicial to the security of the state. The detenue obviously is taken to have been prevented from making an effective and meaningful use

of safeguards available to him under Article 22(5) Constitution of India read with section 13 J&K Public Safety Act, 1978, and make a

representation against his detention. Resultantly, the constitutional and statutory guarantees have been violated by the respondents.

The detenue at the time of the execution of the detention order has not been informed that he may, at his option, make a representation against

the detention order to the government or even to the detaining authority during the period the detention order stays in force pending approval by

the state government in terms of section 8(4) of the provisions of the Public Safety Act 1978. The detention record reveals that the detenue has

been informed that he may make 'representation to the copy' against the order, if he so desires. It would be appropriate to extract hereunder the

receipt of the grounds of the detention that bears signature of the detenue and can be taken to be authentic and reliable and not open to challenge

even from the detenue:

RECEIPT OF THE GROUNDS OF DETENTION

In compliance to District Magistrate Srinagar order no. DMS/PSA/16/2010 dated 22.06.2010, I Syed Ali Shah Geelani S/o Syed Peer Shah R/o

Doru, Sopore, A/P Hyderpora, Sgr, received the grounds of detention consisting of 11 leaves the Dy. Superintendent/Asstt. Supdt. of Central Jail

Srinagar today on 24.6.2010. The contents of the detention warrant/grounds of detention has been read-over and explained to me in

English/Urdu/Kashmir languages which I understood fully. I have also been informed that I can make a representation to the copy against my

detention order if I so desire.

The detenue, therefore, has not been informed that he can make a representation against the detention order to the government, leave aside

informed of his right to represent against the detention order to the detaining authority during the period, between the date of detention order and

its approval by the government. The endorsement made on reverse of the detention order by Shri Tejinder Singh, IPS no. 86096 of P/S Saddar

also does not indicate that either documents details whereof were given in the detention order were supplied to the detenue or that the detenue was

informed that he may make a representation to the government or even to the detaining authority, if so advised.

The grounds of detention indicate that before the detention order impugned in the petition was slapped on the detenue, the detenue was taken

into custody in connection with proceedings u/s 107, 151 Cr. P. C. The detaining authority, however, was of the opinion that there was every

likelihood of the detenue being 'admitted to bail' and opining so the detaining authority decided to slap the detention order on the detenue. There

was no material before the detaining authority nor is reference made to any such material in the grounds of detention, as would persuade the

detaining authority to record satisfaction that the proceedings set into motion under Part IV, Chapter VIII Cr. P. C. were likely to be frustrated or

would not yield any result. In absence of any such material, the detention order is to be held to have been passed in a mechanical manner depicting

non-application of mind on the part of the detaining authority.The detenue admittedly was let off on parole a few weeks after he was detained in

execution of the detention order and is at large for last a little less than two years. The respondents have not found it necessary to

execute/implement the detention order. It is rightly pointed out by the learned counsel for the petitioner that as the preventive detention order was

slapped on the detenue to prevent the society from violence, strikes, economic adversity and social indiscipline, the decision was taken in a set

timeframe and that the link between the detention order and the reasons set out in the grounds is snapped by the afflux of time and the detention

order in question can no more be implemented or executed as is claimed by the respondent in response to a query whether the respondents having

let off the detenue on parole and allowing him to be out for last little less than two years, can implement the detention order.

For all that has been said, the petition is allowed and order no. DMS/PSA/16/2010 dated 22.06.2010 quashed.

Detention record be returned to counsel for the respondent.

Disposed of.