MEHDA SOFI Vs. STATE

JUDGEMENT

(1.) CHALLENGE to order No.DMB/PSA/56 OF 2011 dated 29.07.2011, of District Magistrate, Budgam respondent No.2 herein, whereby one Shri Mehda Sofi son of Gulla Sofi resident of Botkhud Bonen Tehsil Chadoora District Budgam (herein after 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 against 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 have been guiding "smugglers groups" in felling green trees, converting these trees into logs/Phads by use of axes and sawing, fashioning these to Phads and transporting this illegal material to Payeen belt on horses/ponies. The grounds of detention do not give the particulars of "smugglers groups", who are alleged to have been guided by detenue in felling green trees nor particulars of those areas given, wherefrom the detenue is alleged to have been transporting the logs/Phads. 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 Vs The State of Delhi and others (AIR 1953 SC 318); Chaju Ram Vs State of J&K (AIR 1971 SC 263); Mohd Yousuf Rather Vs State of J&K (AIR 1979 SC 1925); and Syed Aasiya INdrabi Vs State of J&K and others (SLJ 2009 (I) 2009 219).

(3.) VIEWED thus, the petition is allowed and detention order No.DMB/ PSA/56 OF 2011 dated 29.07.2011, passed by the District Magistrate, Budgam respondent No. 2, directing detention of Shri Mehda Sofi son of Gulla Sofi resident of Botkhud Bonen Tehsil Chadoora District Budgam, quashed.