Neither Sec 188 of IPC nor Sec 144 of Cr.P.C allow executive to threaten life of citizen for mere breach of curfew order-Gujrat HC

06-02-1974-Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore the true intent of the Constitution. In this Court, there is, however, a body of authority that the nature and extent of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual, but by its object Thereby the constitutional scheme which makes the guaranteed rights subject to the permissible restrictions within their allotted fields fundamental got blurred and gave impetus to a theory that certain Articles of the Constitution enact a code dealing exclusively with matters dealt with therein, and the protection which an aggrieved person may claim is circumscribed by the object of the State action. Continue reading

Application of mind is sine qua non in an executive action to arrive at subjective satisfaction- J&K High Court

08-04-2010-The grounds of detention ex facie are vague, ambiguous and sketchy and not clear and unambiguous enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged “thought process”, “well knit group” at the back of the detenue and the activities that “create law and order problem”. The detenue is not informed who are the people who constitute the “well knit group” at back of the detenue, what changes were expected to be made by the detenue in his “thought process”. What are law and order and “socio-economic” problem that the detenue is likely to create and how are such problems intended to be created. The detenue is not informed about “socio economic problem” that the activities attributed to the detenue result in. The grounds of detention thus are vague, sketchy and lacking in essential details.

(2010) 2 JKJ 652 : (2010) 23 RCR(Criminal) 530

JAMMU AND KASHMIR HIGH COURT AT SRINAGAR

SINGLE BENCH

( Before : Gh. Hasnain Massodi, J )

MASARAT ALAM BHAT — Appellant

Vs.

STATE OF JAMMU & KASHMIR AND OTHERS — Respondent

HCP No. 25 of 2010

Decided on : 08-04-2010

Constitution of India, 1950 – Article 21, Article 22

JUDGMENT

Gh. Hasnain Massodi, J.—Challenge is to order No. DMS/PSA/65/2009 dated 02.02.2010 whereby District Magistrate Srinagar -Respondents No. 2 herein, has ordered preventive detention of Shri Masarat Alam Bhat S/o Abdul Majid Bhat R/o Zaindar Mohalla Srinagar (herein after referred to as detenue) and directed his lodgment in District Jail Kathua. It remains to be known whether detention order has found approval of the Government required u/s 8 (a) of the Public Safety Act 1978 (Act for short) or the matter has been placed before the State Advisory Board in compliance of Section 1 3 of the Act and approved by the State Advisory Board. There is not even a whisper in this regard in the counter affidavit filed by the Respondents.

2. It appears that the detenue has been in continuous custody since 5.9.2008. The detenue was placed under preventive detention vide order No. DMS/PSA/20/2008 Dated 9.9.2008. The detention order was questioned before this Court and quashed on 27.12.2008. The Respondents instead of releasing the detenue, slapped one more detention order No. DMS/PSA/41/2009 dated 21.1.2009 on the detenue. Challenge was thrown to the aforesaid order before this Court and the Detention Order met the same fate on 25.5.2009. The detenue, however, was not released and the Respondents vide order No. DMS/PSA/14/2009 dated 09.06.2009 directed preventive detention of the detenue and his lodgment in District Jail Rajouri. The said detention order became subject matter of HCP No. 108/2009. This Court on 18.08.2009 again quashed the detention order and directed immediate release of the detenue. The Respondents did not abide by the Court order and instead vide order No. DMS/PSA/39/2009 dated 12.09.2009 ordered preventive detention of the detenue and directed the detenue to be lodged, this time, in District Jail Udhampur. The detenue un-tired by the successive detention orders approached once again this Court with HCP questioning legality of the Detention Order. The Respondents during pendency of the petition, on 29.10.2009, revoked the detention order dated 12.09.2009. The Respondents, nonetheless, avoided to release the detenue and once again ordered preventive detention of the detenue vide order No. DMS/PSA/39 dated 19.11.2009. The fresh detention order was again assailed before this Court as violative of the fundamental rights of the detenue. The challenge to the detention order dated 19.11.2009 succeeded on 30.12.2009 and Respondents were directed to release the detenue. The Respondents, however, not in a mood to release the detenue, symbolically arrested the detenue in connection with case FIR No. 34/2006 P/S Nigeen and thereafter FIR No. 7/2010 P/S Maisuma while the detenue continued to be in custody. The Respondent No. 2 thereafter on 2.2.2010 made a fresh detention order which is subject matter of the present petition. Even prior to 5.9.2008, the detenue was put under preventive detention in 1990, 1993, 1997, 2001, 2003,2007 and 16.1.2008. The averments made in this regard do not find any reply in the counter affidavit sworn by the Respondents.

3. The Petitioner throws challenge to the latest detention order (No. DMS/PSA/65/2009 dated 02.02.2010) broadly on following grounds:

1) That the Petitioner immediately after his detention under the impugned order was not informed that the detenue had a right to make a representation against his detention to the Respondent No. 2 and also to the Government and the Respondents by omitting to follow the mandate had violated the constitutional and statutory safeguards, available to the detenue.

2) That the Respondents did not supply the material that was said to have persuaded the Respondent No. 2 to order preventive detention of the detenue and by their failure to provide said material, the Respondents had in effect deprived the detenue of his constitutional and statutory right to make an effective representation against his detention.

3) That the grounds of detention claimed to have led the Respondent No. 2 to believe that preventive detention of the detenue was necessary to achieve the objects spelt out in Section 8 of the Act, are vague, sketchy and ambiguous and practically made it impossible for the detenue to make a representation against his detention.

4) That the grounds claimed by Respondent No. 2 to have led him to find it “expedient to issue detention warrant against” the detenue under the Act, are foreign to the grounds contemplated by Section 8 of the Act.

5) That the Respondent No. 2 while making the detention order in question, failed to apply his mind to the material placed before him and the impugned order was thus made in a mechanical manner.

4. The Respondents in their counter affidavit have merely reproduced the grounds of detention, recorded by the Respondent No. 2 and insisted that the activities of detenue were considered to be highly prejudicial to the security of the State. The Respondents have insisted that the detenue was informed about his right to submit his representation against the detention to the Government and as per requirements of the Act, the grounds of detention were also served on the detenue. The activities of detenue highlighted in grounds of detention, according to Respondents, were by themselves compelling reasons to detain the detenue under the Act. The Respondents in their counter affidavit have insisted that detention order was perfectly valid and issued in accordance with the provisions of the Act.

5. Heard and considered.

6. Challenge to the detention order No. No. DMS/PSA/65/2009 dated 02.02.2010 whereby the Respondent No. 2 has ordered preventive detention of the detenue and his lodgment in District Jail Kathua, must succeed on the following grounds:

(I) The detention record made available by Ld. AAG, does not indicate that the detenue was at the time of execution of the detention order/warrant, informed that the detenue had a right to make a representation to the Respondent No. 2 i.e Detaining Authority, as also to the Government against his detention. Article 22(5) Constitution of India (“Constitution” for short) requires the authority making the detention order, to afford the detenue the earliest opportunity of making a representation against the order. The constitutional safeguard can be made operational only when the detenue is informed at the time of execution of the detention order/warrant that the detenue has a right to make a representation not only to the Government but also to the Detaining Authority. The expression “earliest opportunity” makes the intention of framers of constitution very clear that the opportunity to make representation, is to be afforded immediately after the detenue is put under detention. The detention order in terms of Section 8 of the Act is to come to an end within a period of 12 days from the date the detention order is made, unless it finds approval of the Government.

Having regard to the constitutional mandate, there is no reason to infer that the detenue has to exercise his right to make a representation against his detention only after the period of 12 days. The constitutional safeguard finds expression in Section 13 of the Act. In the present case, as already stated there is nothing on the record to suggest that the detenue was informed at the time the detenue was detained in pursuance of the detention order that the detenue had a right in terms of article 22(5) of the Constitution as also Section 13 of the Act to make a representation against his detention. There has been thus gross violation of constitutional and statutory rights of the detenue. Reference in this regard may be made to law laid down in State of Maharashtra v. Santosh Shanker Acharya AIR 2000 2504.

(II) The detention order in question makes mention of “material record such as dossier and other connected documents” to have been gone through by the detaining authority and relied upon, while making the detention order. The detention record does not indicate anywhere that the “material record” was at the time of detention order or thereafter provided to the detenue. The grounds of detention, likewise make a mention of the previous detention orders slapped on the detenue as also his involvement in case FIR No. 34/2006 P/S Nigeen u/s 13 ULAP Act and 153-A RPC , FIR 7/2010 P/S Maisuma. The said material has admittedly weighed with the Detaining Authority while recording its subjective satisfaction regarding placement of the detenue under preventive detention. The material viz. copies of FIR, material collected during investigation, does not appear to have been supplied to the detenue at the time of the execution of the detention order or at any time thereafter. These documents were necessarily to be made available to the detenue so as to enable the detenue to make an effective representation to the Detaining Authority or the Government explaining his conduct and making an effort to dispel apprehension nursed by the Detaining Authority as regards alleged activities of the detenue. The detenue resultantly has been deprived of exercising his Constitutional and Statutory right guaranteed under Article 22(5) of the Constitution and Section 13 of the Act to file an effective and meaningful representation against his detention. The Respondents thus, have observed their Constitutional and Statutory obligation in breach. The Respondents by withholding the material that was perused and relied upon to order detention of the detenue, to conclude that the activities of the detenue were prejudicial to the security of the state, have made the detention order liable to be quashed. The conclusion drawn finds support from law laid down in Dhananjoy Das Vs. District Magistrate, Darrang and Another, , Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , Union of India (UOI) Vs. Ranu Bhandari, Syed Aasiya Indrabi v. State of Jammu and Kashmir and Ors. And Thahira Haris etc. Vs. Government of Karnataka and Others, .

(III) Article 22(5) Constitution provides a precious and valuable right to a person detained under preventive detention law – J&K Public Safety Act 1978 in the present case, 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 a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the State or to maintenance of the public. Article 22(5) of the Constitution and Section 13 of the Act, thus make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making a representation against his detention. The object is to enable the detenue to convince the Detaining Authority and the Government, as the case may be, that all apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to the detenue meaningful, it is necessary that the detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded the 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.

In the present case, the reasons spelt out in the grounds of detention include an apprehension that there has been no change in detenue’s “thought, process” and that detenue is “incorrigible secessionist” who is threatening the police officers even when the detenue is under detention. The other ground that he is claimed to have weighed with the Detaining Authority, is that the detenue has a “well knit group” backing the detenue. The detenue is informed that his activities do not only create “law and order problems” but also creeite “socio economic problems” because the detenue, in words of Detaining Authority is “mentor of enforcing hartals, strikes and other such activities which hamper the growth and development”. The grounds of detention ex facie are vague, ambiguous and sketchy and not clear and unambiguous enable a man of common prudence to explain his stand much less make an effective representation. The detenue is not informed with clarity about his alleged “thought process”, “well knit group” at the back of the detenue and the activities that “create law and order problem”. The detenue is not informed who are the people who constitute the “well knit group” at back of the detenue, what changes were expected to be made by the detenue in his “thought process”. What are law and order and “socio-economic” problem that the detenue is likely to create and how are such problems intended to be created. The detenue is not informed about “socio economic problem” that the activities attributed to the detenue result in. The grounds of detention thus are vague, sketchy and lacking in essential details. The Respondents, by their conduct, have deprived the detenue of his constitutional and statutory rights guaranteed under Article 22(5) and Section 13 of the J&K Public Safety Act. It is well settled law that even if one amongst various grounds of detention, is found to be vague, the Constitutional and statutory safeguards available to the detenue are to be held to have been violated. Reference in this regard may be made to law laid down in Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, ; Chaju Ram Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, ; and Syed Aasiya Indrabi v. State of J&K and Ors. 2009 (1) SLJ 2009 219.

(IV) Section 8 of the Act, empowers the Government to order preventive detention of any person with a view to prevent such person from acting in any manner prejudicial to (i) security of the State or (ii) maintenance of the public order. In other words the Government before making a detention order is to be satisfied that the activities of the person proposed to be placed under preventive detention, are prejudicial to the (i) security of the State or (ii) maintenance of the public order. Section 83 (1) (a-1) identifies prevention of some other activities like smuggling etc to prevent which the detention order may be made. Section 8(1) (a-1) admittedly is not relevant to the present case. The law makers have not used expression “security of the State”, and “maintenance of public order” without purpose. The Detaining Authority is expected to realize that a democratic polity like ours is edificed amongst others on the ideal of personal liberty. Article 21 of the Constitution of India guarantees life and liberty of every person and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure, it needs no emphasis, has to be just, reasonable and fair. The preventive detention does not go hand in hand with the ideals of personal liberty that run through weft and warp of the Constitution of India. The Supreme Court in A.K. Gopalan Vs. The State of Madras, called Preventive Detention “Sinister looking feature, so strangely out of place in democratic constitution.

In words of Supreme Court “preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world”. The law makers alive to the spirit of the Constitution, in their wisdom, have restricted power to order preventive detention to two extreme situations that may pose threat to the very foundation of society. It is not in each and every case where apprehended activities of a person are suspected to pose a threat to law and order, peace and progress, industrial development or like matters that power u/s 8 of the Public Safety Act can be exercised. The administration may, in day in and day out, come across a number of problems and face a number of challenges which are to be dealt with by recourse to available law(s), it is not that the Government or its officers mentioned in Section 8(2) may at any time at their whim and caprice use preventive detention as a tool to find solution to the problems that are to be dealt with in a routine and normal manner. In the present case the reasons that the Detaining Authority has found so compelling as to order preventive detention of the detenue are “law and order problems”, “socio economic problems”, “interest of law and order”, “peace and security” and “growth in development of the people”. It needs no emphasis that all such apprehended problems are foreign to Section 8 of the Public Safety Act. The law requires nothing short of “security of State” or “maintenance of public order” to slap preventive detention on a person. The officer holding the post of District Magistrate of the Principal District of the State, is expected to be alive to the ambit and scope of his powers u/s 8 of the Public Safety Act. The Respondent No. 2 thus has acted in a callous and irresponsible manner while, ordering preventive detention of the detenue.

(V) The application of mind to the facts and circumstances, is a sine qua non in an executive action/order even if the authority has to arrive at subjective satisfaction while making such order. The Detaining Authority u/s 8 of the J&K Public Safety Act while making a detention order, is required to apply its mind to the facts and circumstances of the case and only after such application of mind draw conclusion that preventive detention of a person is warranted to prevent such person from acting in any manner prejudicial to the security of the State or the maintenance of the public order. The Detaining Authority is expected to be conscious of the fact that the detention order results in curtailment of personal liberty of the detenue. In the instant case non application of mind is writ large on the record. The detention order is made on 02.02.2010 and a copy thereof is forwarded to Financial Commissioner Home and other officers including Sr. Superintendent District Jail Kathua vide No. DMS/PSA/JUD/09/347-51/2009 dated 02.02.2010. However, the Detaining Authority has put his signatures on the grounds of detention on 03.02.2010 i.e a day after the detention order was made. In the circumstances the grounds of detention on which reliance was placed and the detention order made, were spelt out a day after the detention order was made. The Respondent No. 2 intriguingly has signed, the detention order on 3.2.2010. This is sufficiently indicative of the non application of mind and the detention order warrants quashment on this ground alone.

6. In the circumstances, for the reasons discussed above the detention order No.DMS/PSA/65/2009 dated 02.02.2010 impugned in the present petition does not stand legal scrutiny and is liable to be quashed. The detaining order, is accordingly quashed and the detenue namely Shri Masarat Alam Bhat S/o Abdul Majid Bhat R/o Zaindar Mohalla Srinagar directed to be released forthwith unless of course the detenue is required in connection with any other case warranting his custody or detention.

___________________________

Cases Referred

Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, AIR 1999 SC 3051 : (1999) CriLJ 4064 : (1999) 66 ECC 583 : (1999) 5 JT 577 : (1999) 4 SCALE 688 : (1999) 6 SCC 593 : (1999) 1 SCR 421 Supp : (1999) AIRSCW 2985 : (1999) 7 Supreme 407
Union of India (UOI) Vs. Ranu Bhandari, (2008) CriLJ 4567 : (2008) 10 JT 171 : (2008) 12 SCALE 452 : (2008) 17 SCC 348
Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, AIR 1979 SC 1925 : (1979) 4 SCC 370 : (1979) SCC(Cri) 999 : (1980) 1 SCR 258 : (1979) 11 UJ 708
Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, AIR 1953 SC 318 : (1953) CriLJ 1241 : (1953) 4 SCR 708
A.K. Gopalan Vs. The State of Madras, AIR 1950 SC 27 : (1950) CriLJ 1383 : (1950) 1 SCR 88
Dhananjoy Das Vs. District Magistrate, Darrang and Another, AIR 1982 SC 1315 : (1982) CriLJ 1779 : (1983) 1 Crimes 29 : (1982) 1 SCALE 636 : (1982) 2 SCC 521 : (1983) 1 SCR 122 : (1982) 14 UJ 683
Chaju Ram Vs. The State of Jammu and Kashmir, AIR 1971 SC 263 : (1971) CriLJ 281 : (1970) 1 SCC 536 : (1970) 1 SCC(Cri) 227 : (1970) 3 SCR 872
Thahira Haris etc. Vs. Government of Karnataka and Others, AIR 2009 SC 2184 : (2009) CriLJ 2451 : (2009) 5 JT 417 : (2009) 5 SCALE 388 : (2009) 11 SCC 438 : (2009) 6 SCR 941 : (2009) 4 UJ 2041

Magistrates are the normal custodians of general administration of criminal justice

We can only repeat in this connection the observations of the Privy Council in – ‘AIR 1936 PC 253 (2) ’, in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens-

“In their Lordships’ view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police Officers under Section 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records under Section 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever……..” Continue reading