JAVAID AHMAD ZARGAR Vs. STATE OF J&K

JUDGEMENT

(1.) CHALLENGE to Order No. 129/DMB/PSA/10 dated 09.09.2010 (herein after "detention order") whereby District Magistrate, Baramulla respondent No. 2 herein, has ordered preventive detention of Shri Javaid Ahmad Zargar son of Bashir Ahmad Zargar resident of Behrampora Rafiabad Tehsil Sopore District Baramulla (hereinafter referred to as detenue), is to succeed for the following reasons:

(2.) The respondent No. 2 has, at the very threshold, ordered detention of detenue for a period of 06 months. The respondent No. 2 a senior officer in the State Administration, is expected to be aware that the detention order made under Section 8(1) of J&K Public Safety Act read with Sub Section (1) is to survive in terms of Section 8 (4) of J&K Public Safety Act, 1978, for a period of 12 days, unless within said period detention order finds approval of the Government. The respondent No. 2 by placing the detenue under preventive detention for a period of 06 months in one go has not only overstepped his authority and trespassed over the powers of Government but closed all doors for detenue to make a representation against preventive detention. It needs no emphasis that a detenue, under Article 22(5) Constitution of India and Section 13 of the J&K Public Safety Act, has a valuable right to make a representation against his detention to the Detaining Authority, immediately after the detention is made and thereafter to the Government. The detenue has a right to convince the Detaining Authority that the activities attributed to him and apprehended by the Authority are devoid of any substance; that the detenue is a peace loving citizen and there is no reason to suspect that his acts of omission and commission in any manner are prejudicial and detrimental to the security of the State. Once the Detaining Authority orders detention for 06 months, the detenue would be right in nursing an apprehension that the whole matter has been prejudged and there is no use in making a representation against his preventive detention. The illegality committed is bound to dissuade the detenue from making use of an important Constitutional and Statutory right. The Detaining Authority, by deciding on the period of detention at the initial stage, has violated Constitutional and Statutory rights of the detenue guaranteed under Article 22, Constitution of India and Section 13, J&K Public Safety Act.

(3.) THE respondent no. 2 in the concluding para of the grounds of detention claims to be satisfied that the activities of the detenue "are highly prejudicial to the maintenance of public order." However, the respondent No. 2 in his counter affidavit as also detention order has averred that the detenue was placed under preventive detention as in the opinion of respondent No. 2 the activities of detenue were "prejudicial to the security of State." There is thus conflict between the detention order impugned in the petition and grounds of detention as also counter affidavit sworn by the detaining authority. The conflict is indicative of non -application of mind by the detaining authority. The detaining authority appears to be not sure about the exact ground that persuaded it to make the detention order. It is pertinent to point out that the detaining authority can slap prevention detention if the activities of the person proposed to be detained under the Act are prejudicial to the security of the State or public order. Once the detaining authority has not been able to spell out the exact ground in the detention order that led to detention of the detenue, non -application on the part of the detaining authority is writ large on the detention order. The detention order merits to be quashed on this ground alone.