J.P. Singh, J.
1. District Magistrate Budgam's Order No. PSA/DMB/2006/54 dated 3rd of May 2006 detaining Jitender Singh alias Sonu in preventive custody has been questioned in this petition by the petitioner. District Magistrate Budgam had directed the detention of the petitioner on grounds which read thus:
You a resident of Dhakoli (UP) at present Hotel Fayaz, Abi-Guzer Srinagar. You are 31 years old and have studied up to 10+2 and have got Diploma training in computers.
You are acting as a important link of a well-knitted conspiracy to pass on vital information, photographs of defence installations and maps etc. to the ISI agents of Pakistan in order to facilitate infiltrate into and weaken the defence of India.
In the year 1996, you while learning computer at Creation System Nehru Palace in Delhi and came into close contact with one Reh-matullah Khanan Engineering graduate and a Kingpin of the instant espionage case. The duo along with others developed deep friendly and business relations. Subsequently, Rehmatullah Khan established a newspaper 'Rehmat' (Just to camouflage your anti-national espionage activities) through the monetary help you received from ISI agency PaK/PoK and militant nexus after you visited Pakistan on the advice of the Ex-HM Chief Commander Mohammad Ahsan Dar. You also contributed Rs. 01.5 lacs of your own in establishing the 'Rehmat' Daily. You, besides being a partner in 'Rehmat' Newspaper used to install computers of 'Shan Enterprises' which was owned and established by one Bilal Ahmad Khan.
In the year 2000-2001 you installed one computer in the office of PRO Defence (Major B. A. Sahni) at B. B. Cantt which developed some fault and you brought the same to Abi-Ouzar for repairs under a conspiracy with Rehmatullah and your associates, you at that time copied 20/25 files from the said computer on a floppy disk, which you handed over to the kingpin of the espionage network namely Reh-matullah Khan who passed on the same to ISI agents of Pak/PoK through internet.
In the year 1999/2000 the kingpin of espionage network; namely, Rehmatullah Khan had visited Pakistan where he developed contacts with one Junaidul Islam (ISI official agent) who motivated and persuaded him to establish a newspaper in Srinagar and under the garb of that to pass on vital information, especially about the military installation and their activities, for which he was promised to pay huge amount of money. You after returning to J&K; established a newspaper in which you spent Rs. 05.00 lacs which was received by you from your mentor across.
You being close friend, partner and associate of Rehmatullah Khan (Kingpin of espionage network) used to send photographs, sketches and maps of crucial roads and bridges of Army / Security Forces to ISI officials/ agents of Pakistan.
You also used to receive money from within the country on the Cheques of Rehmatullah Khan, which were deposited in the bank account, PoK ISI agents / officials. On the basis of reliable information received by P/s CIK Srinagar you along with your other associates i.e. Rehmatullah Khan resident of Mundji Sopore, Bilal Ahmad Shan resident of Srinagar and Manzoor Ahmad resident of Down Town Srinagar were apprehended a nd arrested on 08-10-2004 a nd a case FIR No. 20/2004 ills 30 SA, 3 SOSA, 120B RPC, 30 printing press Act P/s CIK was registered against you and others. The following items / articles were recovered and seized by P/s CIK from your possession:
1. Documents regarding Military Intelligence School and depot L organization and functioning of Research and Analysis wing (RAW)
2. Map with regard to vital military installation in Jammu and Kashmir.
You were detained under the provision of PSA vide District Magistrate Srinagar Order No. DMS/PSA /37/2004 dated 22-11-2004 for a maximum period to be lodged at Kotbalwal Jail Jammu. The order of detention was subsequently quashed by the Hon'ble High Court of J&K; Srinagar on Technical grounds.
After quashment of detention order, you were required as you were involved in other cases of P/s CIK and arrested in case FIR No. 02/93 U/S TADA, 2/3 E&IMCO;, 251. A. Act, 4/5 Ex-substance Act, 302, 307, 365/ RPC, 120B of P/s CIK Humhama.
Your activities are directly/ indirectly and adversely related to defence and security of the country and you being a potent threat, it is imperative to prevent you from indulging in the activities which are prejudicial to the security of the State. Thus taking into account the nature of the antecedent of your activities, it is likely that you may be released on bail and would again indulge in prejudicial activities (espionage network) and it is necessary to detain you in order to prevent you from engaging in such activities.
You presently stand arrested in case FIR No. 02/93 Pis CIK Humhama and are lodged in JIC/ Sub Jail Humhama, Budgam briefs where you have been observed to instigates other Jail inmates to indulge in espionage activities and to be a member of espionage network for Pakistan ISI and provide them all information / material of security forces.
The normal law is not sufficient to deter you from indulging in anti-national activities which are prejudicial to the security of the State. Your remaining at large definitely involves great risk to the security of the State, as suchyou detention under the provision of PSA has become inevitable.
From the facts and circumstances enumerated above it is clear that your activities are highly prejudicial to the security of the State, No doubt you are presently booked in the substantive laws but there is every likelihood that you may be released on bail by the Hon 'ble Court. As such, it has become imperative to detain you under J&K; Public Safety Act.
2. Petitioner had approached this court on an earlier occasion also when he was detained vide District Magistrate Srinagar Order No. DMS/ PSA/37/04 dated 22-11-2004. The petitioner was not however, released from custody and was ordered to be detained again in preventive custody pursuant to District Magistrate Budgam's order dated 3rd of May 2006. Fresh detention order of learned District Magistrate Budgam reiterates the earlier grounds of detention besides new grounds which for facility of reference are reproduced hereunder:
After quashment of detention order, you were required as you were involved in other cases of P/s CIK and arrested in case FIR No. 02/93 U/S 3/4 TADA, 2/3 E&IMCO;, 251. A. Act, 4/5 Ex-substance Act, 302, 307, 365/RPC, 120B of P/s CIK Humhama. Your activities are directly/ indirectly and adversely related to defence and security of the country and you being a potent threat, it is imperative to prevent you from indulging in the activities which are prejudicial to the security of the State. Thus taking into account the nature of the antecedent of your activities, it is likely that you may be released on bail and would again indulge in prejudicial activities (espionage network) and it is necessary to detain you in order to prevent you from engaging in such activities.
You presently stand arrested in case FIR No. 02/93 Pis ClK Hum-hama and are lodged in J1CI Sub Jail Humhama, Budgam briefs where you have been observed to instigates other Jail inmates to indulge in espionage activities and to be a member of espionage network for Pakistan ISI and provide them all information / material of security forces.
The normal law is not sufficient to deter you from indulging in anti-national activities which are prejudicial to the security of the State. Your remaining at large definitely involves great risk to the security of the State, as such you detention under the provision of PSA has become inevitable.
From the facts and circumstances enumerated above it is clear that your activities are highly prejudicial to the security of the State. No doubt you are presently booked in the substantive laws but there is every likelihood that you may be released on bail by the Hon 'ble Court. As such, it has become imperative to detain you under J&K; Public Safety Act.
3. The activities attributed to the petitioner/ detenue while in custody in FIR No 02/93 in JIC/ Sub Jail Humhama Budgam, are that 'the petitioner had been observed to instigate other jail inmates to indulge in espionage activities and to be a member of espionage network for Pakistan/ ISI and to provide them all information/ material of security forces.
That despite petitioner having been booked under the substantive laws, there was every likelihood that he may be released on bail by the Court.
4. Learned Counsel appearing for the petitioner has attacked the order of detention of District Magistrate Budgam saying that there was no material worth the name on the basis whereof the petitioner could be detained in preventive custody.
5. Learned Counsel further submitted that the petitioner had been deprived of his right to make an effective representation against his detention because of non-supply of requisite material which had been relied upon by the District Magistrate and in that view of the matter he had been deprived of his constitutional right under Article 22(5) of Constitution of India and legal right under Section 13 of Jammu and Kashmir Public Safety Act 1978.
6. Learned State Counsel, on the other hand, produced the detention records and submitted that there was enough material on records to justify the preventive detention of the petitioner for the second time. He referred to various activities of the petitioner as recorded in the grounds of detention to justify the action of the District Magistrate Budgam.
7. I have gone through the detention records produced by Shri. M.A. Wani, learned State Counsel. The dossier which had been sent by Senior Superintendent of Police CID/ CIK Srinagar to the District Magistrate Budgam does not indicate the day, month or year when the petitioner was stated to have briefed or instigated other Jail inmates to indulge in espionage activities or to be member of espionage network of Pakistan/ISI and to provide them all information/material of security forces. The ground relied upon by the District Magistrate, is thus vague and would not provide requisite material to the petitioner on the basis whereof he would exercise his constitutional right of making an effective representation against his detention. Requirement of supplying material and grounds of detention to the detenue is not a mere formality but is the requirement and mandate of Constitution so that the detenue was able to understand the nature of allegations for projecting his case for revocation of the detention order. The purpose and intendment of the statutory provisions and the Constitutional mandate would be denuded of its purpose and mandate if full information was not provided to such detenue. Providing of a detailed statement as to the activities of the detenue informing him atleast about the date, month or year of the activities attributed to him would thus be necessary so as to satisfy the constitutional mandate.
8. The ground of detention in the present case saying that the petitioner had been instigating other Jail inmates to indulge in espionage activities does not satisfy the requirements of law and statutory provisions, because the ground does not indicate either the name of the Jail inmates or the day, month or year when the petitioner was alleged to have instigated or briefed other Jail inmates to indulge in espionage activities.
9. I therefore find this ground of detention to be vague and ambiguous which deprives the petitioner of his right to make an effective representation.
10. The second ground of detention mentioned by the District Magistrate in the grounds of detention too is not supported by any material on records. Petitioner is stated to have been involved and booked in FIR No. 02/93 registered at P/s CIK Humhama, which the Senior Superintendent of Police describes in his dossier as a case registered under Sections 3/4 TADA, 2/3 E&IMCO;, 251.A. Act, 4/5 Explosive Substances Act besides Sections 302, 307, 365 and 120B of RPC. The punishment which these offences entail is death penalty or life imprisonment. Satisfaction recorded by learned District Magistrate that there was every likelihood that the petitioner may be released on bail by the court is not supported by any material on records. The records do not indicate the existence of any such material on the basis whereof such a satisfaction could be recorded by the District Magistrate. The basis of recording the satisfaction appears to have been derived from the following statement appearing in the dossier of Sr. Superintendent of Police CID/CIK, Srinagar:
The activities of the subject are directly or indirectly and adversely related to defence and security of the Country and he being a potent threat, it is imperative to prevent the subject to indulge in the activities which are prejudicial to the security of the State. Thus taking into account the nature of the antecedent activities of the subject, it is likely that he may be released on bail ana would again indulge in prejudicial activities (espionage network) and it is necessary to detain him in order to prevent the subject from engaging in such activities.
11. I am of the view that this is no material on the basis whereof requisite satisfaction could be recorded by the District Magistrate that the petitioner was likely to be released on bail or if released on bail would indulge in activities prejudicial to the security of the State. But for the aforementioned statement contained in the dossier, I do not find even a whisper in the records on the basis whereof it could be said that the detenue was likely to be released on bail or was likely to indulge in such activities if released on bail.
12. For all what has been said above, it may be safely concluded that requisite material was not there on records on the basis whereof detention of the petitioner could be ordered under Section 8 of Jammu and Kashmir Public Safety Act 1978. Grounds of detention being vague and ambiguous have deprived the petitioner/ detenue of his constitutional right under Article 22(5) to make an effective representation against his detention. The order of District Magistrate Budgam therefore, is violative of Sections 8 and 13 of Jammu and Kashmir Public Safety Act 1978.
13. The detention order thus becomes unsustainable. It is accordingly quashed.
Allowing the writ petition, I would accordingly direct the respondents to release the petitioner forthwith if not required in any case for the infraction of penal laws in force in the State.
Detention records shall be returned to the learned State counsel.