TARIQ-UL AMIN Vs. STATE OF J&K

JUDGEMENT

(1.) CHALLENGE to order No.43/DMS/PSA/2011 dated 11.06.2011, of District Magistrate, Shopian respondent No.2 herein, whereby one Shri Tariq- ul-Amin Alias Molvi Tariq son of Late Molvi Mohd Amin resident of Baba Mohalla District Shopian (herein after referred to as "detenue") has been placed under preventive detention, must succeed for following reasons: The Constitution of India Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to the detenue first that the detenue is informed of grounds of detention that prompted the Detaining Authority to pass the detention order and second that the detenue is allowed to represent against his detention immediately after the detention order is made or executed. The Constitutional and Statutory safeguards guaranteed to the detenue are to be meaningful only if the detenue is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenue is necessary to prevent him from acting in any manner prejudicial to the security of the State or public order and further it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the detenue guessing about what really weighed with the detaining authority to make the order.

(2.) THE detention order makes mention of material record such as dossier and other connecting documents relied upon by the Detaining Authority while making the detention order. THE detention order also makes reference to a communication received from Superintendent of Police, Shopian. THE detention record does not establish that all the documents referred to in the detention order were supplied to the detenue. THE endorsement on the reverse of the detention order made by the Executing Officer Kamal-ud Din ASI No. 1401/S of Police Station Shopian, at the time of execution of detention order does not make a reference to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter.

(3.) THE detenue independent of his right to file a representation against his detention to the Government had also right to submit a representation to respondent No.2 till detention order was considered by the Government and approval accorded. THE respondent No.2 was under an obligation to inform the detenue at the time of execution of detention order that he had a right to represent against his detention to respondent No.2, till detention order was placed before the Government for accord of approval. THE detention record reveals that the detenue was not so informed at the time of execution of detention order. THE endorsement on the reverse of detention order recorded by Executing Officer at the time of execution of detention order indicates that the detenue was only informed of his right to make a representation to the Government against his detention, if he so desired and not that he could also make a representation to respondent No.2 during interval of 12 days the detention order in terms of Section 8(4), J&K Public Safety Act 1978 was to stay in force. THEre thus has been infringement of Constitutional and Statutory rights available to detenue and guaranteed under Article 22(5) of Constitution and of the Act. While holding so I draw support from State of Maharashtra and others Vs Santosh Shanker Acharya, AIR 2000 SC 2504.