IRSHAD AHMED Vs. STATE OF J AND K

JUDGEMENT

(1.) CHALLENGE to order No. DMK/PSA/41-47/2011 dated 14-5-2011, of District Magistrate, Kishtwar - respondent No. 2 herein, whereby one Shri Irshad Ahmed son of Ghulam Mustaffa Akhoon resident of Village Lidri Pinjrari Dachhan Tehsil Marwah District Kishtwar (hereinafter referred to as "detenue") has been placed under preventive detention, must succeed for following reasons : Article 22(5) Constitution of India provides a precious and valuable right to a person detained under preventive detention law - J.&K. Public Safety Act, 1978, 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 trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for detaining authority to provide detenue an earliest opportunity of making an effective and meaningful representation agaisnt his detention. The object is to enable detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded 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.

(2.) 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 the exact accusation 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. In the instant case the detenue is alleged to have closed association with "Subash alias Wasif' and "Amir Kamal alias Akram". The detenue was not provided the particulars of "Subash alias Wasif and "Amir Kamal alias Akram" and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Subash alias Wasif and "Amir Kamal alias Akram". 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 the detaining authority and other respondents that the allegations against the detenue were bereft of any basis. 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 the detaining authority. The detenue has been kept guessing about the facts and events that weighed with the 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 Bhardwaj v. The State of Delhi (AIR 1953 SC 318); Chaju Ram v.'state of J&R (AIR 1971 SC 263); Mohd. Yousuf Rather v. State of J. & K. (AIR 1979 SC 1925); and Syed Aasiya Indrabi v. State of J & K (2009 (1) SLJ 219).

(3.) VIEWED thus, the petition is allowed and detention order No. DMK/PSA/41-47/ 2011 dated 14-5-2011, passed by the District Magistrate, Kishtwar respondent No. 2 directing detention of Shri Irshad Ahmed son of Ghulam Mustaffa Akhoon resident of Village Lidri Pinjrari Dachhan Tehsil Marwah District Kishtwar, quashed.