AMIN LONE Vs. STATE

JUDGEMENT

(1.) CHALLENGE to order No.DMB/PSA/66 OF 2011 dated 18.10.2011, of District Magistrate, Budgam respondent No.2 herein, whereby one Shri Amin Lone son of Gaffar Lone resident of Drung Tehsil Khag District Budgam (herein after referred to as "detenue") has been placed under preventive detention, must succeed for following reasons:

(2.) 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.

(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 Section 13 of the Act. While holding so I draw support from State of Maharashtra and others Vs Santosh Shanker Acharya, AIR 2000 SC 2504.