Jammu & Kashmir High Court - Srinagar Bench
Zahid Zameer Mir vs Union Territory Of Jammu & Kashmir ... on 11 December, 2023
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 556/2022
Reserved on: 04.12.2023
Pronounced on: 11.12.2023
Zahid Zameer Mir
S/O Zameer Ahmad Mir
R/O Souch District Kulgam
...Petitioner(s)
Through: Ms. Sheeba Khan, Advcate vice
Mr. Wajid Mohammad Haseeb, Advocate.
Vs.
1. Union Territory of Jammu & Kashmir through
Additional Chief Secretary, Home Department,
J&K Govt., Civil Sectt. Srinagar/Jammu.
2. District Magistrate Kulgam.
...Respondent(s)
Through: Mr. Mubeen Wani, Dy.AG.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. Through the medium of the instant petition, the order of detention bearing No. 46/DMK/PSA/2022 dated 25.06.2022 (for short 'impugned order') passed by District Magistrate Kulgam- respondent No. 2 (for short 'Detaining authority') has been challenged, by virtue of which the petitioner (for short 'the detenue') has been ordered to be detained under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short 'the Act').
2. The case of the petitioner is that the detenue was arrested in the year 2020 and was implicated in cases FIR No.73/2020 and FIR No. 113/2019 registered at Police Station Kulgam for the commission of Page |2 offences punishable under Sections 307 IPC, 506 RPC, 7/27 A. Act, 13, 16, 20, 398, 39 UAP Act, but was admitted to bail. The detenue was thereafter, called to police station Kulgam in the month of June 2022 and was detained illegally and while being in the custody, he was shifted to Central Jail Jammu to be detained under the provisions of Public Safety Act in terms of the impugned order, which is challenged through the medium of the instant petition.
3. The detenue has challenged the impugned order of detention inter alia on the grounds that the allegations leveled in the grounds of detention have no nexus with the detenue and have been fabricated by the police in order to justify its illegal action of detaining the detenue; that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegation and passing of detention order on such grounds is unjustified and unreasonable; that no material, which has been relied upon by the Detaining Authority, has been furnished to the detenue thereby depriving him of his valuable right of making effective representation against preventive detention and the order of detention has been passed on stale grounds; that the last alleged activity attributed to the detenue, as per the grounds of detention, has taken place in the year 2020 and thereafter no fresh activity has been attributed to the detenue; that post detention, the detenue has submitted a representation before the respondents, however, same was neither considered nor the material as requested was furnished to the detenue.
4. Pursuant to the notice, Counter Affidavit has been filed, perusal of which reveals that the detenue has been detained pursuant to the order of detention passed by the Detaining authority and while doing so, all Page |3 the procedural safeguards enshrined under Article 22(5) of the Constitution of India and Section 13 of the Act, have been fully complied with by the respondents.; that all the requisite documents have been supplied to the detenue so as to enable him to make an effective representation to the Detaining Authority and to the Government; that the order of detention was executed and the detenue was taken into preventive custody after the contents of the detention order/warrant and the grounds of detention were read over and explained to him in the language which he fully understood and he was also informed of his right to make representation to the Detaining Authority. It is further pleaded that the Detaining Authority found it necessary to detain the detenue under the Act, to prevent him from causing activities to disturb public order.
5. The main plea of learned counsel for the detenue is that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. All the allegations levelled against the detenue are far from reality and that the detenue is not involved in any unlawful activity, so as to justify his preventive detention.
6. Learned Dy.AG, ex-adverso, submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention. He Page |4 further argued that the pleas of the grounds of detention being vague, non-existent, non-relevant, not proximate or invalid, shall not invalidate the detention order as statutorily provided in Section 10-A of the J&K PSA, in terms whereof petitioner has been detained. He finally submits that the impugned detention order, having been passed perfectly in consonance with law, grounds of detention explained / communicated to the detenue, as is disclosed from his receipt of the material, all safeguards complied with the subjective satisfaction of detaining authority, cannot be gone into, to substantiate its own opinion by the Court. It was prayed to uphold the impugned detention order.
7. Heard, perused the detention record and considered.
8. On perusal of the record, it reveals that the detenue has not been furnished all the documents pursuant to the order impugned in terms of which he was taken into custody. He has not been provided copy of the communication of the sponsoring agency referred to in the impugned order which is stated to have been received from the said agency, on which the detaining authority has stemmed its subjective satisfaction. In case the detaining authority intends to rely on the stand, as is reflected in the records, that the copies of the documents were furnished to the detenue, then it was mandatory upon the said authority to place on record the affidavit of the person who has furnished the documents to the detenue. In this regard it may be apt to quote the relevant observation made in the case "State Legal Aid Committee, J&K Vs. State of J&K & others (AIR 2005 SC 1270)":-
"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 Page |5 of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (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 detainee 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 13 of the Act."
9. The Hon'ble Apex Court in the judgment rendered in the case 'Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC 3051)', has held 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."
10. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue. If the detenue is not supplied the material on which detention order is Page |6 based, the detenue cannot be in a position to make an effective and meaningful representation against his detention.
11. It is also a fact that time frame within which representation was required to be filed has not been conveyed to the detenue. This too has to be treated as a breach of right of the detenue under Section 13 of Public Safety Act and Article 22 of the Constitution of India. Allahabad High Court has rendered the judgment in the case 'Jitendra Vs. District Magistrate (2004 CriLJ 2967) in this regard and has observed that:
"...There is another reason as to why in our judgment the impugned detention order would be vitiated. Since the detenue's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government."
12. Perusal of record further reveals that during the investigation in FIR No. 113/2019 registered at Police Station Kulgam, the detenue was found involved in pasting posters of some terrorists on the walls in the area in order to create anti national and anti government environment among general masses endangering sovereignty and integrity of the nation. The detenue was arrested and on questioning, he was found involved in the said crime, however, was later on bailed out by the competent court of law. The detenue was also found involved in case FIR No. 73/2020 under Sections 307 IPC, 7/27 A.Act, 13, 16, 20, 398, 39 UAP Act registered at P/S Kulgam. It is worth to mention here that the last alleged incident occurs in the year 2020, whereas the detention order was passed on 25.06.2022, meaning thereby that on the basis of Page |7 said FIR, the detenue was not ordered to be detained earlier. The grounds of detention of the earlier detention order have been taken into consideration while passing the present impugned order of detention by the Detaining Authority. The same grounds could not have been relied upon by the respondents for issuance of fresh detention order.
13.With no specific allegations, involvement of the detenue has been shown in the commission of offences in a case registered vide FIR No. 73/2020 registered at Police Station Kulgam under Sections 307 IPC, 7/27 A.Act, 13, 16, 20, 398, 39 UAP Act, with no details as to his trial or its outcome. This too is a stale ground to base the detention in the month of June 2022, of an incident in the year 2020, after a period of more than two years. The afore-stated grounds of detention, as such, are general allegations against the detenue, with no specific instances/incidents. The detention order based on such vague and stale grounds is not sustainable, for the reason that the detaining authority before passing the order has not applied its mind to draw subjective satisfaction to order detention of the detenue by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India. In this regard reliance can be placed on the judgments of Supreme Court in the cases (i) Jahangirkhan Fazal Khan Pathan Vs. Police Commissioner Ahmadabad (1989) 3 SCC 590 and,
(ii) Abdul Razak Nanekhan Pathan Vs. Police Commissioner Ahmadabad AIR 1989 SC 2265.
14. Representation to review the impugned detention order had been filed by the father of the detenue to the District Magistrate, which was received by his office on 21.07.2022, however, in counter affidavit, there is no mention of representation filed by the detenue.
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15. Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenue's representation as early as possible. It is obligatory for the detaining Authority or the Government, as the case may be, to consider the representation of the detenue and pass appropriate orders thereon. There should be no slackness, indifference and callous attitude in consideration of the representation of a person who is detained. Any unexplained delay would render the continued detention of the detenue as illegal. Every day delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference.
16. Hon'ble Supreme Court in the case "Tara Chand vs State of Rajasthan & Ors., 1980 (2) SCC 321" has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.
17.The Supreme Court in another case "Dr. Rahmatullah vs State of Bihar, AIR 1981 SC 2069" has held that clause (5) of Article 22 of the Constitution of India by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenue an opportunity to make representation is distinct from the Government's obligation to refer the case of the detenue along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. Para-4 of the said judgment will be advantageous to be quoted hereunder:-
"4.The normal rule of law is that when a person commits an offence or a number of offences, he should be Page |9 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 be 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 detenue 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."
18. In view of the above settled proposition of law, this petition is allowed. Detention Order No. 46/DMK/PSA/2022 dated 25.06.2022, is, hereby quashed. As a sequel to the aforesaid order, the detenue namely Zahid Zameer Mir S/O Zameer Ahmad Mir R/O Souch District Kulgam, is directed to be released from the preventive custody provided he is not required in any other case(s).
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19. Detention record, as produced, be returned back to the learned counsel for the respondents.
20. Petition is disposed of accordingly.
(M. A. CHOWDHARY) JUDGE Srinagar 11.12.2023 Muzammil. Q Whether the Judgment / Order is Reportable: Yes / No Whether the Judgment / Order is Speaking: Yes / No