HIGH COURT OF JAMMU AND KASHMIR- SRINAGAR Case No: HC(p) 172/2017 Dated : 30th of AUG., 2017 FEHMEEDA SOFI VERSUS STATE AND ORS. ORDER SHEET CORAM: HON'BLE MR. JUSTICE [ENTITY]- JUDGE i. Whether to be approved for reporting in NET : Yes/No ii. Whether to be approved for reporting in Digest/Journal : Yes/No FOR THE PETITIONER/s : MR. [ENTITY] FOR THE RESPONDENT/s: . MR. [ENTITY], Sr.AAG ([ENTITY]-J) 01/ In exercise of the powers vested in him under [SECTION] of the [ACT] (for short [ACT]), the respondent No.2 - District Magistrate, Srinagar, passed an order of detention bearing No. DMS/ PSA/02/2017 dated 09th of May, 2017, having the effect of detaining the detenue ([ENTITY]) and lodging her at District Jail, Baramulla. However, this lodgement was subsequently changed to the Central Jail, Kotbalwal, Jammu, and thereafter to District Jail, Amphalla, Jammu. The petitioner has assailed this order before this Court, on the grounds, inter alia, that the material referred to in the grounds of detention, to enable the detenue to make a representation, has not been provided to her, which is mandatory in view of the law laid down by the Hon'ble Supreme Court. The grounds of detention are HC(P) 172/17 Page 1 of 23 vague, uncertain, indefinite, untrue and unreal. These lack in material particulars, viz. place, time, day, month, year etc. and as such the detention order is liable to be set aside. The earlier order of detention dated 18-10-2016, having been quashed by the Court on 22-12-2016, no fresh order of detention could be passed against the detenue, unless there were fresh grounds, which came into existence after the passing of the order dated 22-12-2016 and her release from the detention. The grounds of detention are a replica of the police dossier and only the word "subject" has been changed into the word "you" by the District Magistrate, Srinagar, which smacks of non application of mind. The grounds of detention do not show that the detenue was arrested on 26-04-2017 and was booked by the police station, [ENTITY], Srinagar, in a case registered against her u/[SECTION] [ACT], in which the Executive Magistrate, 1st Class, Idgah, Srinagar, granted her bail on 09-05-2017. The order of detention has been passed without application of mind, rendering the same liable to be set aside. It has further been stated that since the detenue was in custody at the time of passing of the order of detention, therefore, there was no justification to detain her under the preventive detention. Her bail application could have been opposed or the order could have been challenged before the superior Court and in no case could she be detained under the [ACT]. HC(P) 172/17 Page 2 of 23 02/ The respondent No.2 has resisted and controverted the petition of the petitioner, primarily, on the ground that the order of detention has been passed after taking into consideration the relevant provisions of the [ACT]. The grounds of detention have been conveyed to the detenue in the language with which she is conversant. These have been read over and explained to her. The material, that formed the base line of the detention of the detenue, has also been provided to her and she has also been told that she has a right to make a representation to the Government as also to the authority that passed the order of detention. It has been passed with due diligence. It will survive in the eyes of law. It is neither perverse nor bad and, therefore, the petition of the petitioner merits dismissal. 03/ Heard and considered. 04/ The argument of the learned counsel for the petitioner is that although in the order of detention passed by the respondent No.2, the detenue has been informed that she has a right to make a representation against her detention before the detaining authority and the Government, yet the detention order is invalid under law. He has stated that the order of detention was passed on 09-05-2017. It was served on the detenue on 18-05-2017, on which date she could not make a representation to the detaining authority, inasmuch, as HC(P) 172/17 Page 3 of 23 the order of her detention had already, on 15-05-2017, been approved by the Government. 05/ Appreciating this argument of the learned counsel for the petitioner, what gets revealed from the perusal of the record relating to the detention of the detenue is that in the execution report dated 18-05-2017, by which the warrant of detention has been executed by Inspector [ENTITY] No. 4463/NGO, SHO, Police Station Women Cell, Rambagh Srinagar, at District Jail Jammu, it is stated that the contents of the warrant of detention and the grounds of detention have been read over and explained to the detenue in urdu/kashmiri languages, which she understands fully and in token thereof, her signature has been attained on the report. It is further stated in this report that the detenue has been informed that she can make a representation to the Government against the order of detention. In the receipt of the grounds of detention, also attached to the detention record, the detenue has been informed that she can make a representation to the Government against the detention order, if she so desires. The detention order has been approved by the Government vide No. Home/PB-V/1015 of 2017 dated 15-05-2017. Since the detention order has been approved on 15-05-2017 and the material in the shape of grounds of detention, consisting of (05) leaves, supplied by the District Magistrate, Srinagar, have been HC(P) 172/17 Page 4 of 23 served on the detenue on 18-05-2017, on which date, the order of detention issued by the District Magistrate had already been approved by the Government, therefore, the detenue could not make a representation to the detaining authority but to the Government only. In doing so, the detenue has been deprived of her right to make a representation before the detaining authority. This, according to the learned counsel for the petitioner, renders the detention order invalid under law. To substantiate his argument, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir vide order dated 09th June, 2017, passed in the case of [PRECEDENT], the relevant excerpts of which are reproduced below : "6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of [SECTION] of the [ACT], the detaining authority also has the power to revoke the detention order. This power is clearly relatable to [SECTION] of the [ACT], which has been saved by virtue of [SECTION] of the [ACT]. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of [SECTION] of the [ACT] read with [SECTION] of the [ACT]. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh HC(P) 172/17 Page 5 of 23 Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the [ACT], were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under [SECTION] of the [ACT] and such failure would make the order of detention invalid. 7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order. 8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of [SECTION], which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under [SECTION] of the [ACT] and [ACT] under [SECTION] thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant. 9. [SECTION] of the [ACT], and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. [SECTION] of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. [SECTION] of the [ACT], reads as under:- "19. Revocation of detention orders.- HC(P) 172/17 Page 6 of 23 (1) Without prejudice to the provisions of [SECTION] of the [ACT], a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in [SECTION]. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where - (i) the earlier order of detention or its continuance is not legal on account of any technical defect or (ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded." 10. Sub-Section (1) clearly indicates that without prejudice to the provisions of [SECTION] of the [ACT], a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in [SECTION] of the Act. What [SECTION] provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under [SECTION], the Detaining Authority retains jurisdiction to revoke the detention order in terms of [SECTION] of the [ACT]. The said [SECTION] reads as under:- " [SECTION]. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws. Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add HC(P) 172/17 Page 7 of 23 to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." 11. It is further evident that till the Government grants approval to the detention order in terms of [SECTION] of the [ACT], the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order. 12. On examining the Supreme Court decision in the case of [ENTITY] (supra), we find that that the relevant provisions of the [ACT] are in pari materia to the provisions of the [ACT]. For example, [SECTION] of the [ACT] is almost identical to [SECTION] of the [ACT], [SECTION] of the [ACT] corresponds to [SECTION] of the [ACT] and, similarly [SECTION] and [SECTION] of the [ACT]s correspond to [SECTION] and [SECTION] of the [ACT]. [SECTION]. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was whether in case of an order of detention by an officer under [SECTION] of the said [ACT], non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under [SECTION] of the [ACT] and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the [ACT]al right under [SECTION] of the [ACT] and the detention order would be vitiated. 14. The Supreme Court, after considering the [ACT]al Bench decision in [ENTITY] Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the [ACT] and annul revoke or modify the order, as is provided under [SECTION] of the [ACT]. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under [SECTION] of the [ACT] would constitute an infraction of a valuable right of the detenu under [SECTION] of the [ACT] and that the ratio of the [ACT] Bench decision in case of [ENTITY]'s case (supra) would apply notwithstanding the fact that in [ENTITY]'s case (supra) the Court was dealing with an HC(P) 172/17 Page 8 of 23 order of detention issued under the provisions of [ACT]. Ultimately the Supreme Court held as under:- "This being the position, it goes without saying that even under the [ACT] a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under [SECTION] of the [ACT] and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed." 15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable [ACT]al right guaranteed under [SECTION] of the [ACT] as also of the right under [SECTION] of the [ACT]. Failure of such non-communication would invalidate the order of detention. 16. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself. 17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as his detention order is concerned. 18. The appeal is allowed. The impugned order is set aside." 06/ The judgement cited above is lucid and clear. Applying its ratio to the facts of the instant case, what can be said is that it is an HC(P) 172/17 Page 9 of 23 open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, she has not been informed that she can make a representation to the Detaining Authority, against the order of detention, till such time that the same was approved by the Government. This permitted no option as it is a right guaranteed under [SECTION] of the [ACT] and [SECTION] of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 07/ From the perusal of the execution report, what is brought to the fruition is that the detenue, along with the documents in the shape of the detention warrant and the grounds of detention, was handed over to the authorities of District Jail, Jammu, and these were read over and explained to her. The record bears a testimony to the fact that 05 leaves were provided to the detenue. The grounds of detention and the detention warrant comprise 03 and not 05 leaves. Therefore, everything does not augur well in the instance case. Which 03 pages were handed over to the jail authorities, shrouds in a mystery and which 03 pages were read over to the detenue, sinks in suspicion ? 08/ Looking at the said ground from yet another angle, in order to eradicate all the doubts, it was incumbent on the part of the person, HC(P) 172/17 Page 10 of 23 who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in this regard. In the law laid down by the apex Court of the country in the case of [PRECEDENT], it has been held as under : "1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of [SECTION] of the [ACT], (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of [SECTION] of the Act." 09/ In the grounds of detention, it is stated that whenever she (the detenue) is released, she again recycles her secessionist activities and indulges in highly objectionable activities aimed at seceding the State of J&K from the Union of India and destabilize the administrative machinery. This is said to have surfaced during the course of the investigation in cases bearing [CASE NUMBER] u/[SECTION] [ACT] [ACT] p/s [ENTITY], [CASE NUMBER] u/s HC(P) 172/17 Page 11 of 23 [SECTION], [SECTION], [SECTION], [SECTION]-[ACT] p/s [ENTITY], [CASE NUMBER] u/[SECTION], [SECTION], [SECTION]-[ACT] p/s R.M.Bagh & F.I.R No. 93/2016 u/[SECTION], [SECTION] [ACT] p/s [ENTITY]. Since the detaining authority derived satisfaction on the basis of material collected in the four cases registered against the detenue in the years 2005, 2006 & 2016, therefore, it was incumbent on his part to provide the same to the detenue. This has hampered the detenue to make an effective representation to the Government as provided under the law. Therefore, the argument, that the entire material was provided to the detenue, is a spurious one and does not hold true. It was also of essence to see whether the fact situation had undergone any change from the date of the earlier order of detention made on 18-10-2016, which order was quashed by this Court on 22-12-2016. Nothing, on that count, has been done by the detaining authority. Doing so was necessary to find out whether the same grounds have been repeated and reiterated in the present order or that it was based and considered on some fresh material. 10/ Looking at the petition of the petitioner from another perspective, the District Magistrate, Srinagar, invoked the aid of all the four F.I.Rs supra in ordering the detention of the detenue. Three of them relate to the years 2005 & 2006 and the fourth one pertains to the year 2016. The order of detention has been passed on HC(P) 172/17 Page 12 of 23 09-05-2017. The stale incidents, that took place much before the passing of the order of detention, have been invoked by the District Magistrate, Srinagar, in carving out a case of detention against the detenue. These do not appear to have any immediate or proximate connection with the detention order and could not form the basis for the detention of the detenue. 11/ In the grounds of detention, which are said to have been provided to the detenue, it has been stated that you (the detenue) are affiliated with Dukhtaran-i-Millat Organization and are a close associate of the its Chairperson, namely [ENTITY]. The main objective of this Organization is to garner support of the women folk for seceding the State of J&K from the Union of India. You (the detenue) have launched a vicious campaign to highlight the distorted facts through media to support the illegal activities of the secessionist elements working with the Organization like Hurriyat Conference (G) and other similar secessionist groups and are privy to formulating various illegal programmes/calls in order to keep the situation simmering. You (the detenue) have taken active role in devising the programmes with secessionist elements, which have created violence on large scale in 2016 unrest. You have been found to be active in instigating the disgruntled elements to resort to violence by delivering highly provocative speeches along with Syed HC(P) 172/17 Page [SECTION] of 23 Asiya Andrabi, Chairperson of Dukhtaran-i-Millat Organization, which are aimed at creating disturbance in the valley and which, in turn, affects the maintenance of public order. You (the detenue) are gathering the unlawful assemblies and delivering objectionable and highly inflammatory speeches to attract the general public to join the secessionism and indulge in unlawful activities. You have been found working in close association with secessionist elements where you have been assigned a special role for ensuring participation of women folk in carrying forward the illegal activities and programmes of the secessionist organizations and all this is done to disrupt the present situation by enforcing the general public to remain indoors and observe hartals/shutdowns and indulge in stone pelting. While conducting the investigation in case [CASE NUMBER] registered against you in various police stations, you have been found to be the source of instigation for the protestors as well the disgruntled elements, who resort to arson and other illegal activities. The investigation has further revealed that you, by your statements and sermons, have been justifying the stone pelting and providing moral support to other illegal activities like arson of schools, other institutions, Govt. buildings, public and Government transport by the disgruntled elements. It has also been found that whenever you (the detenue) are released, you again recycle your HC(P) 172/17 Page 14 of 23 secessionist activities and thereafter indulge in highly objectionable activities directed at seceding the State of J&K from the Union of India. It is also stated in the grounds of detention that you (the detenue) have been detained on several occasions and lastly you were detained under [ACT] in terms of detention order issued by this office vide order NO. DMS/PSA/61/2016 dated 18-10-2016. The said detention order was quashed by Hon'ble High Court of Srinagar. After release from jail, you again indulged in illegal activities which are prejudicial to the maintenance of public order. You have again started a campaign to create an atmosphere which is sure to affect maintenance of the public order. It is further stated in the grounds of detention that if you are allowed to remain at large at this juncture, you will again indulge in illegal activities which have a direct bearing on the maintenance of public order as the separatist elements are desperately trying to disrupt the public order and you are one of the forefront secessionist elements to take an active part in such activities. It is further mentioned in the grounds of detention that in order to stop you (the detenue) from indulging in above activities, your detention under the provisions of [ACT] at this stage has become imperative as the normal law has not been found sufficient to stop you from indulging in above activities. HC(P) 172/17 Page 15 of 23 12/ The grounds of detention appear to be vague, incomplete, uncertain and indefinite. These lack in details and are based on insinuations and allegations. These do not state the places, time, days, months and the years, in which such activities were carried out by the detenue. Where she developed the contacts and with which secessionist elements, is not given. Whom she aided, what endeavour did she make to secede the State of J&K from the Union of India, in which anti national activities did she indulge, what role did she play in the 2016 unrest, has not been detailed. At which places did she make the provocative speeches with [ENTITY], which motivated the disgruntled elements for indulging in illegal activities, is not stated. Which of the militants did she glorify. Where did she exploit the present situation, what material was collected during the investigation of the four cases, the particulars of which have been given hereinbefore, where did it surface that she instigated the protestors and others to resort to arson and other illegalities, has been completely ignored ? This cuts at the very root of the detention order. A cue can be had, in this behalf, from the law laid down in paragraphs 5,7,8 & 17 of the judgement passed by the apex Court of the country in the case of [PRECEDENT], which, for the convenience of ready reference, is reproduced below : "05. A reading of the first paragraph shows that it is vague in several respects. It does not state the places where the petitioner is said to have organized the meetings or the nature of lawlessness instigated by him. It does not also mention the names of the villages where he is said to be in the habit of going for compelling the shopkeepers to close down their shops and to participate in the meetings. So also, it does not mention the villages where the petitioner was reported to have "recently" started the campaign asking the inhabitants not to sell their extra paddy, or to manhandle the government officials. The paragraph is therefore undoubtedly very vague.
7. The sixth paragraph is also vague for while it states that the petitioner was found leading the unruly mobs in different villages and instigating them to set fire to the house of the worker of the Jamat-i-Islami, the names of those villages and the name of the owner of the burnt house have not been stated.
8. It is obvious therefore that the above grounds of detention are vague. This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenue under [SECTION] of the [ACT] to make a representation against the order of detention when the grounds on which the order has been made or communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference in this connection may be made to this Court's decision in [PRECEDENT] where the guarantee of [SECTION] has been characterized as an elementary of a citizen in a free democratic State, and it has been held that if a ground of detention is not sufficient to enable the detained person to make a representation at the earliest opportunity, it must be held that his fundamental right in that respect has been infringed in as much as the material conveyed to him does not enable him to make the representation. So as the aforesaid grounds of detention are vague, the petitioner is entitled to an order of release for that reason alone. It is true that as has been held in [ENTITY]'s case (supra) "vagueness" is a relative term, and varies according to the circumstances of each case, but if the statement of facts contains any ground of detention, which is such that it is not possible for the detenue to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation, it does not require much argument to hold that one such vague ground is sufficient to justify the contention that his fundamental right under [SECTION] of the [ACT] has been violated and the order of detention is bad for that reason alone. Reference in this connection may also be made to the decision in Tarapada De vs. State of West Bangal, 1951 SCR [SECTION]2, [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
17. We are primarily concerned in this case with [SECTION] which is as follows :
"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"
The extent and the content of [SECTION] the subject matter of repeated pronouncements by this Court (vide, [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]. The interpretation of [SECTION], consistently adopted by this Court, is , perhaps, one of the outstanding contribution of the Court in the cause of human rights. The law is now well settled that a detenue has two rights under [SECTION] of the [ACT]: (1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenue entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenue's constitutional rights is that the precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority."
[SECTION]/ On the basis of the law laid down above, what can be said is that the grounds of detention are vague in almost all respects. These do not state as to where have the activities, attributed to the detenue, taken place. Each such accusation had to be explained by reference to the relevant material, which, in turn, had to be provided to the detenue so that a semblance of fairness could be attached to the order of detention. This has not been done. This vagueness in the grounds of detention impinges on the fundamental rights of the detenue guaranteed under [SECTION] of the [ACT] and it cannot stand.
14/ Looking at the case of the petitioner from yet another aspect, the relevant excerpts of the order bearing No. Home/PB-V/1548 of 2017 dated 14-08-2017, passed by Principal Secretary to Government, Home Department, require to be reproduced herein below word for word and letter for letter :
" whereas the period of detention of the detenue is scheduled to expire on 17-08-2017 and IGP, CID vide his above quoted reference has recommended extension in the period of detention in respect of the above detenue under the aforesaid Act."
15/ This order speaks volumes about the complete lack of application of mind. It states that the very foundation of the order of the extension of the period of detention is the recommendation made by the Inspector General of Police (IGP), CID, which is completely unknown to the provisions of law contained in the [ACT]. [SECTION] of the [ACT], running under the Head (Detention Of Certain Persons) provides that the Government may, if satisfied with respect of any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order etc., make an order that such person be detained by the Divisional Commissioner or by the District Magistrate. It also provides that when an order is made by the Divisional commissioner or by the District Magistrate, he shall, forthwith, report the fact to the Government together with the grounds on which the order of detention has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after making thereof unless, in the meantime, it has been approved by the Government.
16/ What gets revealed from the above provision is that the order of detention made either by the Divisional Commissioner or by the District Magistrate, has to be confirmed by the Government within a period of 12 days as otherwise it will lose its sanctity. [SECTION] of the [ACT] provides that the maximum period of detention for which any person may be detained in pursuance of a detention order, which has been confirmed by the Advisory Board u/[SECTION] of the [ACT], shall be 03 months in the first instance, which may be extended to 12 months from the date of detention of a person acting in any manner prejudicial to the maintenance of public order and 06 months in the first instance, which may be extended up to 02 years from the date of detention in case of a person acting in any manner prejudicial to the security of the State. [SECTION] of [ACT] provides that nothing contained in this section shall affect the powers of the Government to revoke or modify the detention at any earlier time or to extend the period of detention.
17/ A conjoint reading of the two sections quoted above would mean that the Divisional Commissioner or the District Magistrate can pass an order, thereby detaining a person for a period of 12 days, within which period, it has to be confirmed by the Government as otherwise it will lose its validity. So it is the Government, which has to regulate the period of detention of the detenue after the afflux of this time. However, in the instant case, fate had it for the detenue, that the order of detention has been extended on the mere asking of IGP, CID, which is in utter violation of the law. 18/ Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. The personal liberty of a citizen, guaranteed to him/her by the [ACT], cannot be deprived except in due course of law and for the purposes sanctioned by law. The maxim of the English Law is that every imprisonment is, prima facie, unlawful and it is for the person, directing imprisonment, to justify the action. This principle has been followed by the Hon'ble Supreme Court in [PRECEDENT], where it has been held that in a petition, for the grant of a writ of Habeas Corpus, it is enough for the detenue to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful. In the present petition, the detention order does not stand these tests both in being passed and in following the procedure.
19/ Viewed in the above context, the petition is allowed, as a consequence of which, the order of detention bearing No. DMS/ PSA/02/2017 dated 09th of May, 2017, passed by the respondent No.2 - District Magistrate, Srinagar, is quashed with a further direction to the respondents to release the person of Mst. [ENTITY] D/O [ENTITY] R/O Lalbazar, Srinagar, Kashmir, forthwith from the preventive custody.
20/ The petition is, accordingly, disposed of along with connected IAs. Registry to return the record to the learned counsel for the respondents.
[ENTITY].
30-08-2017 ([ENTITY]) JUDGE