ABDUL AZIZ Vs. STATE

JUDGEMENT

(1.) THE detenue Abdul Aziz taken into preventive custody on 26.11.1990 in execution of a detention order issued by the District Magistrate, Jammu, on 18.9.1990 from acting in some manner prejudicial to the security of the State has preferred this Habeas Corpus Petition through his brother Mohammad Farooq for issuance of a writ of Habeas Corpus for quashing his detention order No. 23 of 1990 dated 18.9.1990 on the ground that he is a permanent resident of State, of Jammu and Kashmir and is citizen of India. It is contended that he studied upto PUC class and could not continue his studies further and started a kiryana shop in Ustad Mohalla, Jammu in the year, 1986, to earn his livelihood. He has no bad antecedents and bears no political affiliation of any nature. He was taken into custody by the police station Pacca Danga and there form, was moved to Joint Interrogation Centre, Canal Road Jammu, on 8.2.1990. His brother (the present petitioner) made an inquiry about the charges on which he was arrested, but till 26.2.1990 was told that he would be released soon. As nothing was held from the police, therefore, he moved an application for grant of bail in favour of the detenue in the Designated court of T.A.D.A at Jammu, and the said court granted bail in favour of the detenue 011 31.3.1990. The bail order was passed by the learned Presiding Officer of the T.A.D.A. court Jammu, after he was satisfied that no primafacie case Under section 4/5 of the TADA Act existed against the detenue. The bail order was passed by the learned trial court with certain conditions and such conditions, fixed against the detenue were withdrawn by the trial court in October, 1990. A copy of the said order is attached with the writ petition as Annexure "P/2". After the detenue was released on bail, he remained busy with his business and nothing untoward was attributed to him. That on November, 26th, 1990 the detenue was arrested by a police party from police station, Jammu, headed by one Javid Ahmad ASI from his house. The detenue was shifted on that very date to Sub Jail, Udhampur, where he stands lodged. The detenue has been served with an order of detention dated 18.9.1990 alongwith the grounds of detention on December 3rd, 1990. The grounds of detention served on the detenue are liable to be quashed on the following grounds: 1. That the grounds of detention are not based on any material documents and same being vague are not sustainable. He could not make any representation against the detention order, as no documents were supplied to him, so much so, the police dossier on which the respondent No.

(2.) /Deputy Commissioner, Jammu has based his subjective satisfaction. The order of detention is liable to be quashed, as the same has been passed by the detaining authority without applying his mind properly. The detaining authority has not shown his awareness regarding the release of detenue on bail, neither has he given any compelling reasons in the grounds of detention in the context of making as order of detention. Since, no material or documents are referred to in the grounds of detention, therefore, there is nothing on record to show as to on what material the detaining authority has drawn his subjective satisfaction for passing the detention order against the detenue. The grounds referred to in the detention order are vague, vexatious and bundle of lies not based on any material whatsoever. The order of detention is shown to have been issued on 18.9.1990 and the detenue was taken into custody on 26.11.1990. One fails to understand as to why the order was not executed even when the detenue used to appear before the Designated Court under TADA Act in pursuant to the conditions imposed upon him under the bail order. The grounds referred to in the detention' order show that the detaining authority had drawn his subjective satisfaction from some posters, but the said posters have never been supplied to the detenue alongwith the grounds of detention, thereby enabling him to make an effective representation against the said detention before the competent authority. The presumption drawn is that no such posters ever existed, otherwise those could be referred, to in the grounds of detention. 2. Against this petition, a counter has been filed by the State and his (detenue's) detention has been supported on the ground that the detenue is a supporter of the Kashmiri youths who are engaged in armed struggle in liberating Kashmir from Union of India. That the detenue had developed relations with one Arif alias Haji, who lives at residency Road Jammu, and initiated his activities by pasting posters containing inflamatory speech against the State and the Central Government at conspicuous places in Jammu city. The fact of the matter remains that the detenue was granted bail by the trial court; but the grant of bail does not absolve the detenue of his prejudicial activities and his pas conduct and that is why it was necessary to detain him under preventive detention, as his activities were highly prejudicial to the interest of the State, which have been fully mentioned in the grounds of detention served upon the detenue. His remaining at large on bail was prejudicial to tile maintenance of the public order and security of the State, and that was the compelling circumstance for ordering the detention of the detenue. The grounds of detention are based on cogent evidence and material which have been served, upon the detenue. The grounds are not vague, as alleged by the detenue. It was for Grounds of detention in respect of Shri Abdul the detenue to make representation before the detenue to make representation before the authority at the time of service of grounds upon him: The detenue was informed that he could make representation to the Government against his detention. It is denied that the relevant documents have not been supplied to the detenue. The detention order has been passed by the detaining authority after applying his mind and the detaining authority was aware of detenue's past conduct and activities till the order of detention was passed, and the detenue was taken into preventive custody. That the grant of bail is no ground for quashing the detention order, as there was over whelming evidence which justified the detention of the detenue.

(3.) ON a reading of the grounds mentioned above, it is clear that some posters were handed over to the detenue by one Arif alias Fiaji, who lives opposite to Church at Residency Road, Jammu, alongwith two strangers. He supplied five posters to the detenue which were pasted by him at various places in the Jammu city, and the said posters contained the words "release Shabir Shah". Copies of these posters have not been supplied to the detenue and the same disabled the detenue to make a representation before the Government, to challenge the grounds of detention on that count. No doubt, it is for the detaining authority who makes the order of detention to form the subjective satisfaction, upon the material to show that the activities of the detenue were hostile for the integrity and the security of the country, and such actions of the detenue were detrimental to the safety of the country, but the Act does not absolve, the detaining authority from supplying such documents to the detenue, upon which the subjective satisfaction was framed by such an authority. Such documents necessarily to be supplied to a detenue, so that he was seized of an opportunity to make a representation to the Government and such a representation on the basis of such documents supplied to the detenue, was considered by the Advisory .6oard. In. the premises there is no substance in the contention of the learned Additional Advocate General that all the documents were, supplied to him when, on the perusal of the file, it transpires that no posters as described in the grounds of detention were; at all supplied to the detenue on which score, he was unable to make the proper representation about the detention order, before the competent authority.