MANZOOR AHMAD WAGAY Vs. STATE OF J&K

JUDGEMENT

(1.) CHALLENGE to order No.08/DMK/PSA/2010 dated 12.07.2010, of District Magistrate, Kulgam respondent No.2 herein, whereby one Shri Manzoor Ahmad Wagay son of Ama Wagay resident of Drangbal, Tehsil D.H. Pora, District Kulgam (herein after referred to as detenue) has been placed under preventive detention must succeed for the following reasons:-

(2.) IT is pertinent to point out that the Detaining Authority intriguingly has referred to the grounds of detention to have been prepared by Superintendent of Police, Kulgam, and placed before Detaining Authority. The Detaining Authority may get inputs from different agencies, including Senior Superintendent of Police of the concerned District. Responsibility to formulate grounds of detention, however, rests with the Detaining Authority. IT is Detaining Authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. IT is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive detention. The detention order, for the said reasons, exhibits total non-application of mind by the Detaining Authority. The detention order is liable to be quashed on this ground alone.

(3.) IN the instant case the detenue is alleged to be OGW of HM outfit. The words/expressions like OGW and HM are too vague to make the detenue aware of exact accusations 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 detenue is alleged to have been indulging in extorting of money from the people to provide financial assistance to the outfit, preparing/instigating youth to join militancy and providing information to militants about movement of security forces. The detention record does not reveal that the detenue is furnished the necessary details of person(s), from whom money was extorted nor the details of militants, to whom the financial assistance was provided by detenue. The militants, to whom the information regarding movement of security forces was being allegedly provided/transmitted by the detenue, are not identified nor their identity disclosed. The detenue, in absence of such details, could not be expected to have been in a position to give his side of story and persuade Detailing Authority and other respondents that the allegations against 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. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by detaining authority. The detenue has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority 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 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 Versus The State of Delhi and others, AIR 1953; Chaju Ram Versus State of JAMMU AND KASHMIR, AIR 1971 SC 263; Mohd Yousuf Rather Versus State of JAMMU AND KASHMIR, AIR 1979 SC 1925; and Syed Aasiya INdrabi Versus State of J&K and others, 2009 (I) SLJ 2009 219.