Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Mir vs Ut Of J&K & Anr on 2 August, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 17.07.2023
Pronounced on:02.08.2023
WP(Crl.) No.180/2021
MANZOOR AHMAD MIR ...Petitioner(s)
Through: - Mr. Wajid Haseeb, Advocate.
Vs.
UT OF J&K & ANR. ...Respondent(s)
Through: - Mr. Raees ud Din Ganai, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the medium of instant petition, the petitioner has challenged the legality and veracity of the order No.52/DMP/PSA/2021 dated 18.10.2021, issued by District Magistrate, Pulwama - respondent No.2 herein, in terms whereof, Manzoor Ahmad Mir S/o Gh. Ahmad Mir R/o Kisergam Tehsil Kakapora (hereinafter referred to as the detenue), has been ordered to be taken into preventive custody and lodged in Central Jail, Jammu (Kotbalwal).
2) The petitioner has contended that the detaining authority has passed the impugned detention order mechanically without application of mind, inasmuch as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are 2 WP(Crl.) No.180/2021 vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the Constitutional procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner and that the representation filed by him has not been considered by the respondents.
3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have placed reliance on the judgment of the Supreme Court in Hardhan Saha v. State of W.B (1975) 3 SCC 198. The respondents 3 WP(Crl.) No.180/2021 have produced the detention record to lend support to the stand taken in the counter affidavit.
4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main, thrust during the course of arguments, was on the following grounds:
(I) That the detenue was not furnished the whole of the material to enable him to make an effective representation against his detention.
(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same was not considered thereby rendering the detention order unsustainable in law.
5) So far as the first ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received detention warrant (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (Nil) (total 05 leaves), and in token whereof, his signatures have been obtained on the document under the style 'Execution Report', which forms part of detention record. Nothing has been brought on record to indicate that the copy of the police dossier has been furnished to the detenue. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue.4 WP(Crl.) No.180/2021
6) In the case of preventive detention, a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The Supreme Court has in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, while interpreting Article 22(5) of the Constitution, observed that furnishing of grounds of detention means material sufficient to enable the petitioner to make an effective representation.
7) In Shalini Soni v. Union of India, (1980) 4 SC 544, the Supreme Court has observed that 'grounds' in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which led to such factual inferences. The Court further clarified that copies of the documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds.
8) Thus, the detaining authority is required to communicate to the detenue, (i) grounds of detention; (ii) all the documents referred to in the grounds of detention; (iii) all the documents and material which the detaining authority considers while framing his subjective satisfaction;
(iv) detention order and also the police report or dossier if any.
9) The word 'grounds' used in clause (5) of Article 22 of the Constitution means not only the narrations or conclusions of facts, but also all materials on which those facts or conclusions which constitute grounds are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation.
The detaining authority is obliged to mention in the grounds as to on 5 WP(Crl.) No.180/2021 which material it has based its satisfaction. Failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. For this, support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241.
10) As already noted, the petitioner has not been furnished the whole of the material which formed the basis of the grounds of detention. It appears that the copy of the police dossier which formed basis for the grounds of detention has not been furnished to the petitioner. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
11) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).
6 WP(Crl.) No.180/2021
12) In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (AIR 1999 SC 3051), the Supreme Court has observed as under:
".....The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
13) In Ibrahim Ahmad Batti v. State of Gujarat, (1982) S SCC 440, the Supreme Court has, while relying on its earlier judgment Khudiram Das v. State of W.B, (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531; Shalini Soni v. Union of India, (1980) 4 SCC 544; Lulluabhai Jogibhai Patel v. Union of India,(1981) 2 SCC 427; Kamla Kanyalal Khushalaniv. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC, in paragraph 10 of the judgment, has held as under:
"Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 (5) of the Constitution."7 WP(Crl.) No.180/2021
14) From the foregoing discussion of law on the subject, it is clear that an order of preventive detention becomes unsustainable in law if the detenue has not been provided with all the material that has formed basis of his detention. As already noted, in the instant case, the copy of the police dossier has not been furnished to the detenue. Hence, the impugned order of detention has been rendered unsustainable in law.
15) The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents.
16) It has been specifically contended by the petitioner that he had made a representation against his detention through his father, which, seemingly, has been received by the office of District Magistrate, Pulwama, on 28.10.2021. The copy of the representation bears the seal and endorsement of the office of the District Magistrate concerned. The petitioner has specifically pleaded in ground (viii) of his petition that he made a representation before the Detaining Authority but the same has not been placed before the Advisory Board. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. The detention record does not suggest that the said representation has been either placed before the Advisory Board or considered by the Board. The failure of the respondents to place the representation submitted by the detenue before the Advisory Board and its consequent non-consideration indisputably amounts to violation of 8 WP(Crl.) No.180/2021 constitutional safeguards provided the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:-
"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:
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. This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution."9 WP(Crl.) No.180/2021
17) From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.
18) For the afore-stated reasons, the petition is allowed and the impugned detention order isquashed. The respondents are directed to release the petitioner from the preventive custody forthwith, unless, of course, he is not required in connection with any other case.
(Sanjay Dhar) Judge Srinagar 02.08.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No