HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual Mode)
WP(Crl) No. 743/2022
Reserved on: 01.04.2024
Pronounced on: 30.04.2024
Tariq Ahmad Napa
…Petitioner(s)
Through: Mr. N. H. Shah, Sr. Advocate.
v.
Union Territory of J&K & Anr.
…Respondent(s)
Through: Mr. Jahangir Ahmad Dar, GA.
CORAM: RAJESH SEKHRI, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1. Challenge in this petition has been thrown to a Detention order
No.76/DMB/PSA/2022 dated 15.09.2022, passed by District Magistrate
Baramulla-respondent No.2, vide which, the petitioner, namely, Tariq Ahmad
came to be detained and lodged in Central Jail,
Napa [‘the detenue’]
Kotbalwal, Jammu.
2. The petitioner has invoked writ jurisdiction of this Court to question the
impugned detention order, inter-alia on the grounds that the grounds of
detention being vague in nature, no prudent man can make an effective
representation against said grounds; that representation dated 22.09.2022 filed
by him has not been accorded consideration; that procedural safeguards
prescribed under Jammu and Kashmir Public Safety Act, 1978
(‘PSA’, for
short), and Articles 21 and 22 of the Constitution of India have not been
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followed; that neither any reference pertaining to his detention has been made
to the Advisory Board within the prescribed period under PSA nor Board has
made any report with respect to sufficiency of the material; that grounds of
detention are unreasonable and suffers from non-application of mind; that he
has not been apprised of his right to make representation; that he was neither
served with detention order nor with the material referred to in the grounds of
detention; that grounds of detention were supplied to him in a language not
understandable or intelligible to him and that there is no nexus between the
alleged prejudicial activity attributed to him and the security of the State
sought to be achieved by his detention.
3. Ex adverso, the detaining authority, in the counter affidavit, is affront
with the contention that no legal, fundamental or statutory right of the detenue
has been infringed in the present case, as respondents have complied with all
the statutory and constitutional provisions and followed the requisite
formalities before passing of the impugned detention order.
4. It is contention of the respondents that detenue came to be detained
under the provisions of PSA, by virtue of the impugned detention order issued
by District Magistrate, Baramulla-respondent No.2, after due adherence of
statutory requirements and constitutional guarantees, as also keeping in mind
the object of lawful preventive detention, which is preventive in nature and
not punitive. The grounds of detention, order of detention and the relevant
material relied upon by the detaining authority was furnished to the detenue
within statutory period provided under Section 13 of PSA. In compliance to
the order passed by the detaining authority, detention order/warrant came to be
executed by the concerned police on 17.09.2022, by virtue of which the
detenue was handed over to the Assistant Superintendent Central Jail Jammu
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Kotbalwal, for lodgement. According to the respondents, the contents of the
detention order/warrant and the grounds of detention were read over and
explained to the detenue in a language, which he fully understands, and in lieu
whereof the detenue subscribed his signatures on the execution report. It is
also contended that the detenue was well informed about his right to make
representation to the detaining authority or to the Government against his
detention, however, he did not choose to do so. It is further contention of the
respondents that the detention case of the detenue was referred to Advisory
Board for its opinion, in terms of Section 15 of the PSA, and the said Board,
constituted under Section 14 of PSA, considered the material placed before it,
and the Board, in terms of Section 16 of PSA, has opined that there is
sufficient cause of detention of the detenue and it was only after the
report/opinion of the Advisory Board, the impugned detention order came to
be confirmed by the Government vide order No. Home/PB-V/2341 of 2022
dated 30.09.2022.
5. On the factual front, it is allegation of the respondents that the detenue
namely Tariq Ahmad Napa, through his fiery speeches at every available
opportunity exhorted the general public to raise voice against the Government
duly established by law. He is mainly responsible for organising anti-
Government protests and is instigating the youth of Baramulla town to create
an atmosphere of fear among the peace loving people of the area. He is
reportedly one of the active members of the grid and can play a
separatists’
vital role in implementing their antinational programmes on ground. He is
nurturing the secessionist ideology and in-fact is motivating others to follow
the suit. It is the allegation of respondents that detenue has indulged in various
antinational activities which facilitated strengthening of network of
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antinational grid of district Baramulla. It is also alleged that the detenue
conceives the secessionist strategy and has potential to implement it on
ground. According to the respondents, as per the reports received from field
formation, the aim and objective of the detenue is to secede the UT of Jammu
& Kashmir from the Union of India and his remaining at large will pose a
threat to the maintenance of security of the State.
6. As per the respondents, on account of and in view of aforesaid facts and
circumstances, the detaining authority found it necessary and imperative to
invoke the provisions of PSA and to detain the detenue in order to preclude
him from indulging in activities prejudicial to the security of the State.
7. Heard rival contentions of the parties and perused the detention record.
8. While learned counsels for the parties have reiterated their respective
pleadings in arguments, learned counsel for the petitioner has relied (i)
Jitendra v. District Magistrate Barabanki & Ors.; 2004 CRI.L.J. 2967 (ii)
Sajad Ahmad Bhat v. Union Territory of J&K & Anr.; 2023(1) SLJ 244(HC)
(iii)) Imran Qadir v. Union Territory of J&K & Anr.; 2023 (4) JKJ 207 (HC)
(iv) Sushanta Kumar Banik v. State of Tripuri & Ors.; 2023(3) JKJ 181
(SC) and (v) Ab. Majeed Dar v. Union Territory of J&K & Anr.; 2023(6)
JKJ 77 (HC).
9. The petitioner, at the foremost, has questioned the impugned order on
the ground that procedural safeguards prescribed under the provisions of PSA
and guaranteed under Articles 21 and 22 of the Constitution of India, have not
been complied with, by the respondents. It is also contention of the petitioner
that neither any reference, pertaining to his detention has been made to the
Advisory Board within the prescribed time nor Board has made any report
with respect to sufficiency of the material to warrant his detention.
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10. The detaining authority, in terms of sub-section-4 of Section-8 of PSA,
is obliged to report the fact to the Government together with the grounds on
which detention order is made, including other particulars those in his opinion
have a bearing on the matter, and it is provided that no such order shall remain
in force for more than twelve days after making thereof, unless in the
interregnum, it has been approved by the Government.
11. It appears from the detention record that in the present case, the
detaining authority endorsed a copy of the detention order dated 15.09.2022 to
the Home Department for approval, as envisaged under sub-section-4 of
Section-8 PSA and perusal of the record also reveals that the Financial
Commissioner (ACS) Home, vide order No. Home/PB-V/2255 of 2022 dated
21.09.2022, has approved the order of detention. Therefore, it is manifest that
the detaining authority, immediately upon issuance of the impugned detention
order, reported the matter to the Government, and the Home Department has
approved the impugned detention order. It is, thus, evident that mandatory
provisions of PSA have been strictly complied with by the detaining authority.
12. Further contention of learned counsel for the petitioner is that the
detenue has neither been served with detention order nor material referred to
in the ground of detention which prevented him from making effective
representation against his detention. It is also urged by learned senior counsel
for the petitioner that the detenue has not been provided an opportunity of
making representation within prescribed period of law nor he was informed of
his right to make representation.
13. The aforesaid ground of challenge made use by learned senior counsel
for the petitioner being specious is liable to be turned down for the simple
reason that the respondents in their reply affidavit has confuted preference of
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any representation by the detenue and its receipt by them. In the
circumstances, the petitioner was obliged to make an endeavour to refute the
said contention of the respondent-detaining authority and controvert the reply
affidavit by filing rejoinder which the petitioner did not choose to do.
Therefore, stand of the respondents, qua non-receipt of representation by it,
remained un-rebutted on part of the petitioner.
14. Next ground raised by learned counsel for the petitioner to question the
impugned detention order is that neither translated script of the detention order
in Kashmiri or Urdu language was furnished to the detenue nor grounds of
detention were read over and explained to him in the language understood by
him, which according to the petitioner is reflection of non-application of mind
on the part of the detaining authority.
15. Section-13 of PSA, indeed provides that when a person is detained in
pursuance of a detention order, the authority making the order shall, as soon as
may be, but ordinarily not later than five days and in exceptional
circumstances, for the reasons to be recorded in writing not later than ten days
from the date of detention, communicate to him, in the language
understandable to him, the grounds on which the order has been made and
shall afford him the earliest opportunity to make a representation against the
detention order.
16. It is, indeed, settled position of law that communication, as envisaged
by Section 13 PSA means bringing home to detenue effective knowledge of
facts and grounds on which detention order is made and to a person who is not
conversant with English language, the grounds of detention must be given in a
language which he understands and in a script that he can read, in order to
satisfy the requirements of the law.
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17. Perusal of the detention record, however, would show that it came to be
executed upon the detenue on 17.09.2022 i.e. within five days from the date of
passing the detention order. Notice of detention was given to the detenue and
contents of the detention warrant as also the grounds of detention were read
over and explained to the detenue in Urdu/Kashmiri languages, fully
understood by him, and his signatures were obtained as an acknowledgment of
this fact on the receipt of the grounds of detention and other related record.
Perusal of the said receipt would also reveal that copy of detention order (01
leaf), notice of detention (01 leaf), grounds of detention (01 leaf), dossier of
detention (nil), copies of FIR, statements of witnesses and other related
relevant documents (nil), (total 03 leaves), were not only received by the
detenue but same were read over and explained to him in the language which
he fully understands. In addition, detenue has been informed of his right to
make representation to the Government as well as detaining authority against
his detention order, if he so desires.
18. As already stated, the petitioner has failed to refute the contents of this
receipt by filing any rejoinder to the counter affidavit, therefore, it implies that
respondents have scrupulously adhered to the statutory and constitutional
obligations, pre and post passing of the detention order, impugned in the
present writ petition.
19. Be that as it may, the petitioner has assailed the impugned order of
detention, primarily on the ground of vagueness of grounds of detention.
According to the petitioner, the grounds of detention being vague, no prudent
man could make an effective representation against said allegations. It is
contention of learned counsel for the petitioner that since the grounds of
detention are vague in nature, it prevented the petitioner from making an
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effective representation, as a result whereof fundamental rights of the
petitioner, guaranteed in terms of Article 22(5) of the Constitution of India,
has been infringed.
20. The import of Article 22(5) of Constitution of India arose for discussion
way back in
before six Judges Bench of Hon’ble Supreme Court of India,
1951 in State of Bombay v. Atma Ram Shridhar Vaidya reported in 1951
AIR SC 157. It reads as under:-
“22(5). When any person is detained in pursuance of an order
made under any law providing for preventive detention, the
authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a
representation against the order.”
21. It is manifest on a plain reading of Article 22(5) of Constitution of
India that it consists of two parts. While first part gives a right to a detenue to
be furnished with grounds on which the order has been made as soon as may
be, the second part provides a right to the detenue to be afforded earliest
opportunity of making representation against the order of detention.
22. Atma Ram has observed that though both
Hon’ble Supreme Court in
the rights are separate, to be exercised at different times, however, they are
connected with each other and it may not be possible for the detenue to make
representation against the detention order without getting information,
sufficient to make an effective representation, otherwise, it was held that right
will be illusory one and not real one. It was further observed by the Apex
Court that detenue may be able to make representation only if he has
knowledge of the grounds on which the authorities conveyed that they were
satisfied about the necessity of making detention order.
23. Relevant excerpt of the judgment captured in Para-14 reads as under:-
“14. The contention that the grounds are vague requires some
clarification. What is meant by vague? Vague can be considered
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as the antonym of 'definite.' If the ground which is supplied is
incapable of being understood or defined with sufficient certainty
it can be called vague. It is not possible to state affirmatively more
on the question of what is vague. It must vary according to the
circumstances of each case. It is, however, improper to contend
that a ground is necessarily vague if the only answer of the
detained person can be to deny it. That is a matter of detail which
has to be examined in the light of the circumstances of each case.
If, on reading the ground furnished it is capable of being
intelligently understood and is sufficiently definite to furnish
materials to enable the detained person to make a representation
against the order of detention it cannot be called vague. The only
argument which could be urged is that the language used in
specifying the ground is so general that it does not permit the
detained person to legitimately meet the charge against him
because the only answer which he can make is to say that he did
not act, as generally suggested. In certain cases that argument
may support the contention that having regard to the general
language used in the ground he has not been given the earliest
opportunity to make a representation against the order of
detention. It cannot be disputed that the representation mentioned
in the second part of Art. 22(5) must be one which on being
considered may give relief to the detained person.”
Jahangir Khan Fazal Khan Pathan v.
Later Hon’ble Supreme Court in
Police Commissioner & Anr. reported in (1989) 3 SCC 590, where
allegations against the detenue was that he was a prohibited bootlegger, doing
illegal activity of selling English and Deshi liquor and he along-with his
associates was showing deadly weapons, like Rampuri knife to the innocent
persons and was beating innocent persons who opposed his activity of liquor
etc. has held that said statements are vague as detenue could not make an
effective representation against said allegations. Relevant excerpt of the
judgment reads as under:-
“8. The other grounds regarding the vagueness of the averments
made in the grounds about the petitioner indulging in criminal
activities apart from the five criminal cases lodged under the
Prohibition Act and mentioned in the ground of detention do not
satisfy the requirements envisaged in Section 3(1) of the PASA Act
inasmuch as the said five specific criminal cases have no
connection with the maintenance of public order. The aforesaid
criminal activity does not appear to have disturbed the even
tempo of life of the people of Ahmedabad City or of the particular
locality. Furthermore the averments have been made in the
grounds are; Accordingly, upon careful perusal of complaint and
papers enclosed with the proposal it appears that you are a
prohibition bootlegger, doing illegal activity of selling English and
Deshi liquor. You and your companion are bearing and showing
deadly weapons like Rampuri knife to the innocent persons
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passing through the said locality on the premise of being of police
lice. And you are beating innocent persons who
„Batmider‟ of Po
oppose your activity of liquor etc. These statements are vague and
without any particulars as to what place or when and to whom the
detenue threatened with Rampuri knife and whom he has alleged
to have beaten. These vague averments made in the grounds of
detention hereinbefore are bad inasmuch as the detenue could not
make an effective representation against the impugned order of
detention. As such the detention order is illegal and bad.”
24. It is manifest from the aforesaid observations of the Supreme Court that
if grounds of detention furnished by the detaining authority are not capable of
being intelligently understood and sufficiently definite, so as to enable the
detenue to make an effective representation, the grounds of detention may be
termed as vague. In other words, the detenue may be able to make an effective
representation if the details of the facts, on the basis of which conclusion is
drawn by the detaining authority, are furnished to him.
25. If the present case is approached with the aforesaid principle of law, in
mind, what comes to the fore is that the grounds of detention provided to the
detenue, in the present case, are not only vague but there is no proximity
between the acts attributed to the detenue and apprehension of the detaining
authority.
26. Allegations against the detenue, as they emerge from the grounds of
detention are as follows:
You were born at your native place and is approximately 49
“
years of age. You availed education upto 10th Class from Govt.
Boys Higher Secondary School Baramulla. At present, you are
working as Khateeb/Imaam of Masjid Madina Dargah Aallah
Baramulla.
You reportedly, through your fiery speeches, at every available
opportunity exhorts the general public to raise a voice against
the government duly established by law. You are mainly
responsible for organizing the anti government protests and is
also instigating the youth of town Baramulla to create an
atmosphere of fear among the peace loving people of the area.
Your activities posed a major threat to the maintenance of
security of state. Needless to mention that you are reportedly
one of the active member of separatist grid and can play a vital
role in Implementing their anti national/anti social programmes
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on ground. It has been closely observed that you are nurturing
the secessionist Ideology and In fact is motivating others to
follow the suit.
You have contact with some anti-social/anti-national elements.
You have indulged yourself in various anti-national activities
which facilitated strengthening of network of anti-national grid
in District Baramulla & to provide logistic support to their
operative(s) In the area. Your activities are highly objectionable
as it has been established that you are adamant to disturb peace
& tranquility in Baramulla and its adjoining areas.
You reportedly, conceives the secessionist strategy and has the
potential to Implement it on the ground. As per the reports
received from field formations your aim and objective is to
secede the U.T of J&K from Union of India and to motivate the
youth towards secessionist Ideology. Your remaining at large at
this point of time may adversely affect the maintenance of the
Security of State.
In order to stop you from Indulging in activities which are
prejudicial to the maintenance of security of State, your
detention under the provisions of Public Safety Act-1978 has
become Imperative at this stage. Normal law which has been
Invoked against you has not proved sufficient to stop you from
indulging in activities, which are prejudicial to the maintenance
of security State.
”
(Underlining for emphasis)
27. The first allegation against the detenue is that through his fiery
speeches, at every available opportunity he exhorts the general public to raise
voice against the Government duly established by law. It is also alleged that
detenue is responsible for organising anti-Government protests and is
instigating the youth of Baramulla to create an atmosphere of fear among the
peace loving people of the area. However, the detaining authority has failed to
provide relevant details, as to when and where the detenue made such
speeches and organised anti-Government protests.
28. Another allegation against the detenue is that he is an active member of
-national/anti-
separatists’ grid and can play a vital role in implementing anti
social programmes on ground. Again, detaining authority has failed to provide
specific details of separatists organisation, outfit or the grid, with which
’
detenue is associated.
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29. Next allegation against the detenue is that he has contacts with anti-
social/anti-national elements and has involved himself in various anti-national
activities which facilitated strengthening of anti-national grid of district
Baramulla. Here again the impugned detention order is conspicuously silent
about the anti-social/anti-national elements, with which detenue is associated.
30. On the basis of aforesaid allegations, the detaining authority has
concluded that detenue conceives the secessionist strategy and his aim and
object is to secede the UT of J&K from Union of India.
31. On first blush, a plain reading of grounds of detention would suggest
that detenue has indulged in various anti-national/anti-social activities and he
is an active member of separatists organizations or militant outfits, however,
’
it is surprising to note that not even a single FIR has been registered against
him for any activity alleged to have been committed by him in the past. Since
allegations against the detenue are general in nature, therefore, I find legal
force in the submission of learned senior counsel, appearing for the petitioner,
that detenue was prevented from making an effective representation against
his detention. The allegations against the detenue, being devoid of specific
details, he was left with no option but to make general denial of the allegations
that he is not involved in any such activity alleged to have been committed by
him. The detaining authority has not furnished any detail on the basis of which
it formulated the opinion that normal law of land did not prove sufficient to
dissuade the detenue from indulging in activities prejudicial to the security of
the State.
32. It appears that the grounds of detention furnished to the detenue in the
present case are mere conclusions drawn by the detaining authority based on
some material or reports received from the field agency, however, detaining
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authority has withheld said details for the reasons best known to it, but it
prevented the detenue from making an effective representation, which is
violative of Article 22(5) of the Constitution of India.
33. Having regard to what has been observed and discussed above, the
impugned detention order due to vagueness of allegations does not sustain in
the eyes of law. Hence, present petition is allowed and impugned detention
order is set aside. As a result, detenue, namely, Tariq Ahmad Napa is directed
to be released from the custody.
34. Disposed of.
35. Detention record be returned back to learned GA.
( RAJESH SEKHRI )
JUDGE
Srinagar
30.04.2024
Muzammil. Q (Secy.)
Whether the Judgment/Order is Reportable: Yes
Whether the Judgment/Order is Speaking: Yes