Jammu & Kashmir High Court - Srinagar Bench
Bilal Ahmad Dar vs State Of J&K; And Another. on 23 May, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No.04
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA(HC) No.22/2017
Date of order: 23.05.2017
Bilal Ahmad Dar
...Appellant.
V.
State of J&K and another.
...Respondents.
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Appearing counsel:
Appearing counsel:
For the Petitioner(s) : Mr. Wajid Haseeb, Advocate.
For the Respondent(s) : Mr. B. A. Dar, Sr. AAG.
Per Badar Durrez Ahmed, CJ, (Oral)
01. The present appeal has been preferred by the detenue, Bilal Ahmad Dar, through his brother, Mukhtar Ahmad Dar, against the judgment and order dated 02.03.2017 delivered by a Single Judge of this Court in HCP No.307/2016 in which the detention order No. DMS/PSA/33/2016 dated 10.09.2016 issued by the District Magistrate, Srinagar, was challenged. By virtue of the said detention order, the appellant was placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978. The said appellant was ordered to be lodged at Kote-Balwal, Jammu.
02. The said detention order was executed on 17.09.2016. At that point of time, admittedly, the said detenue was already in custody in connection with FIR No.10/2016 under Section 7/25 Arms Act, 1959 LPA(HC) NO.22/2017 1 OF 9 and Section 3/4 Explosive Substances Act, 1908, registered at Police Station Safakadal, Srinagar.
03. The learned Single Judge dismissed the said Habeas Corpus Petition after examining the contentions of the parties and arriving at the conclusion that none of the detenue's constitutional and statutory rights had been violated by passing of the detention order in question.
04. The learned counsel for the appellant has raised primarily three issues before us questioning the validity of the detention. The first point taken by the learned counsel for the appellant is that the detention order was passed while the appellant was already in custody in respect of the criminal case under FIR No.100/2016. In these circumstances, it was submitted by the learned counsel for the appellant, the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of release of the detenue in that case and that it was necessary to detain the appellant in order to prevent him from indulging in prejudicial activities. According to the learned counsel for the appellant, there is no such satisfaction recorded in the grounds of detention. He placed reliance on the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others: 1994 SCC (Cri) 1691 to submit that since the said satisfaction was not recorded, the detention order was vitiated.
05. The second point taken by the learned counsel for the appellant was that non-supply of relevant material/ documents also vitiated the detention order. In this context, it was the case of the appellant that no LPA(HC) NO.22/2017 2 OF 9 documents at all were supplied to the appellant/ detenue. The non-
supply of relevant documents seriously undermines the capacity of a detenue to make an effective representation against the detention and that in itself would be a ground to declare the detention void. This right flows from the Constitution of India. In support, he referred to the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra: AIR 1999 SC 3051.
06. The third point raised by the learned counsel for the appellant was based on the provisions of Section 13 of the J&K Public Safety Act, 1978, which require that the grounds of detention should have been communicated to the detenue in the language which was understandable to him and that he should be afforded the earliest opportunity of making a representation against the order to the Government. According to him, the detenue only understood Kashmiri language and the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri were provided to him. This seriously prejudiced his right to make an effective representation and on this ground also the detention order would be vitiated.
07. On the other hand, Mr. B. A. Dar, Sr. AAG, defended the judgment of the learned Single as also the detention order and he responded to each of the points. With regard to the first point he submitted that there is a mention in the grounds of detention about the arrest of the detenue with reference to the FIR No.100/2016.
LPA(HC) NO.22/2017 3 OF 9 Therefore, according to him, the detaining authority was aware of the fact that the detenue was already in custody when the detention order was passed. He, therefore, submitted that the point raised by the learned counsel for the appellant on this score was untenable.
08. With regard to the plea of non-supply of material/ documents, Mr. Dar placed before us the record pertaining to the detention. On going through the same, we find that there is a signed document said to have been signed by the detenue, Bilal Ahmad Dar, in English. The said document is titled "Receipt of Grounds of Detention". The text of the said document is set out herein below:
"RECEIPT OF GROUNDS OF DETENTION Received 07 leaves grounds of detention today on 17.09.2016 through Superintendent Central Jail Jammu Kote Bhalwal vide letter No.DMS/PSA/196-199/2016 dated 10.9.2016 passed by District Magistrate Srinagar by reading over and explained to me in Kashmiri Languages which I understood fully. I have been also informed that I can make representation to the Govt. against my detention order if I so desire.
Sd/-
Signature attested Name Bilal Ahmad Dar alias Sakir S/o Gh. Nabi Dar R/o Wussan Kahail Pattan."
09. Based upon the said receipt, Mr. Dar submitted that the grounds of detention had been supplied along with other relevant documents and, therefore, the appellant cannot make any grievance on this ground.
10. In so far as the point of supply of translated copies of grounds of detention in Kashmiri language is concerned, the learned Sr. AAG, LPA(HC) NO.22/2017 4 OF 9 submitted that there was no need to supply translated copies of grounds of detention in Kashmiri language as grounds of detention had been communicated in the language understandable to the detenue. He submitted that it was clearly indicated in the receipt given above that the grounds of detention were read over and explained to him in Kashmiri language. Therefore, the requirement of the constitutional and statutory provisions was entirely met.
11. We shall take up the first point with regard to the ground of satisfaction that has to be recorded by the detaining authority in case the detenue is already in custody in connection with some other case. In this context we need to refer to the decision of the Supreme Court in Surya Prakash Sharma (supra). Paragraphs 5, 6 and 7 are relevant and they are extracted herein below:
"5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words:
"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were LPA(HC) NO.22/2017 5 OF 9 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.
7. On the conclusions as above we quash the order of detention."
12. From the above decision, it is evident that for an order of detention to be valid in respect of a person in custody, it is necessary that the grounds of detention must show that; (i) the detaining authority was aware of the fact that the detenue is already in custody; and (ii) there were compelling reasons justifying such detention despite the LPA(HC) NO.22/2017 6 OF 9 fact that the detenue is already in detention. The expression 'compelling reasons' has also been explained by the Supreme Court as signifying that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and that it was necessary to detain him in order to prevent him from engaging in such activities.
13. In the present case we find that although there is mention of the fact that the detenue had been arrested in connection with FIR No.100/2016 but, it is not clear as to whether the detaining authority was aware of the fact that the detenue continued to be in custody. Furthermore, if we assume that the detaining authority was aware that the detenue continue was in custody in respect of FIR No.100/2016, the compelling reasons, referred to above, have not been indicated in the grounds of detention. In other words, the grounds of detention nowhere make a mention or indicate satisfaction that the detenue was being likely to be released from custody in near future. Therefore, in view of the decision of the Supreme Court in Surya Prakash Sharma, this alone would vitiate the detention order.
14. We now move to the second point which pertains to the non- supply of relevant material in order that the detenue could make an effective representation against his detention. According to the learned LPA(HC) NO.22/2017 7 OF 9 Sr. AAG, seven leaves of grounds of detention had been served upon the detenue. On examination of the record, we find that the seven leaves that are said to have been served upon the detenue are as under: -
(I) Grounds of detention 01 leaf
(II) Order of detention 01 leaf
(III) FIR No.100/2016 01 leaf
(IV) Dossier signed by the SSP, Srinagar 03 leaves
(V) Communication dated 10.09.2016
for making a representation to the
District Magistrate, Srinagar. 01 leaf
Total 07 leaves.
15. But if these seven leaves were supplied to the detenue, we find that the grounds of detention comprise of two leaves and not one. In other words, the grounds of detention that was supplied to the detenue was incomplete. This in itself would vitiate the detention order as the detenue would have been incapacitated from making an effective representation. Even if we assume that two leaves of the grounds of detention were supplied, then it would mean that some other material document was not supplied as the total count was of seven leaves. Therefore, in whichever way we look at this issue there has been non- compliance on the part of the detaining authority resulting in the detention order becoming invalid inasmuch as it is in violation of the constitutional and statutory mandate.
LPA(HC) NO.22/2017 8 OF 9
16. The third point which was urged by the learned counsel for the appellant was that translated copies of the detention order/ grounds of detention were not supplied and this can itself invalidate the detention of the appellant. Reliance was placed on the decision of the Supreme Court in the case of Razia Umar Bakshi v. Union of India and others:
AIR 1980 SC 1751. In that decision, the Supreme Court had observed that where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. In the present case, it is an admitted fact that the grounds of detention in Kashmiri language which is the language which the appellant understood was not furnished to him. That being the case, this is yet another ground for invalidating the detention order.
17. For all these reasons, the impugned judgment is set-aside and the detention order dated 10.09.2016 is quashed. The appellant is directed to be released forthwith if he is not otherwise in custody in connection with some other case(s).
(Ali Mohammad Magrey) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
23.05.2017
Abdul Qayoom, PS
LPA(HC) NO.22/2017 9 OF 9