Jammu & Kashmir High Court - Srinagar Bench
Masrat Alam Bhat vs . State Of J&K And Ors. on 16 May, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Page 1 of 19
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.443/2018
Date of Decision:16.05.2019
Masrat Alam Bhat vs. State of J&K and ors.
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. M. A. Qayoom, Adv.
For the Respondent(s): Mr. Asif Maqbool, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. Detenu - Masrat Alam Bhat son of Abdul Majeed Bhat resident of Zaindar Mohalla Srinagar, through his uncle seeks quashment of detention order No.90/DMB/PSA/2018 dated 13.11.2018, passed by District Magistrate, Baramulla (for brevity "Detaining Authority"), directing preventive detention of the detenu.
2. The detention order, through the medium of writ petition on hand, has been challenged, precisely, on the following grounds:
i. That the respondent No.2 has passed the order of detention on the basis of the letter dated 12.11.2019 of respondent No.3 with which he had also produced the material record, such as dossier and other connected documents viz. copy of FIR No.52/2017, 258/2016, 99/2018, 215/2010 and 137/2013 but neither copy of the communication nor any other material relied upon by the respondent No.2 has been provided to the detenu to enable him to make an effective representation against his detention;
ii. That the respondent No.2, in terms of communication dated 13.11.2018, has informed the detenu about his detention and has also HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 2 of 19 told him that his detention has been ordered on the grounds specified in the annexure appended thereto and that he may inform the Home Department, as to whether he would like to be heard in person by the Advisory Board. He has also asked him to make a representation to the Govt. in the Home Department or to him against the said detention order, if he so desires. Since in the communication dated 13.11.2017, it is nowhere mentioned as to within how much period of time, the detenu has to file such representation before the Govt. or before the detaining authority which was mandatory on their part to tell him;
iii. That the respondent No.2 has not read over and explained the grounds of detention to the detenu in the language which he understands viz. Urdu or Kashmiri. He has also not provided the translated copies of the grounds of detention to the detenue to enable him to make an effective representation against his detention to the appropriate authority; iv. That the respondent No.2 has also stated in the grounds of detention that the detenue was finally detained by the order of District Magistrate, Kupwara, dated 14.11.2017 and that his detention term was going to expire on 12.11.2018 and in case he is allowed to remain at large, there is reasonable apprehension that he shall again indulge in antinational activities, prejudicial to the security of the State, which indirectly is not only threat to people at large but against the country as a whole. If a person is detained under the provisions of PSA and he serves the entire period of detention, he cannot be detained on the ground that if he is allowed to remain at large, there is reasonable apprehension that he shall again indulge in antinational activities, prejudicial to the security of the State or public order. It is only when, after the expiry of the period of detention, the detenu is released and he indulges in any activity which is prejudicial to the security of the State or the public order and has come into existence after his release that he can be again detained under the provisions of PSA. In the instant case, after the expiry of the period of detention, the detenu having not been released by the respondents, there was, therefore, no fresh material available with the respondent No.2 for detaining the detenu under the provisions of PSA.
HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 3 of 19 In the instant case, after the expiry of the period of detention, the detenu having not been released by the respondents, there was, therefore, no fresh material available with the respondent No.2 for detaining the detenu under the provisions of PSA;
v. That an order of preventive detention is admittedly an invasion on the legal and fundamental rights of a person. Such an order cannot be passed by the detaining authority on his ipse-dixit. When a person has been booked in a substantive offence, he has to be tried under the normal law and if the allegations levelled against him are proved, he can be punished. Preventive law being not a substitute for the normal law, therefore, it cannot be resorted to by the detaining authority to avoid the prosecution of the said person under ordinary law. In the instant case, the respondents having registered 20 cases against the detenu, therefore, they were obliged under law to file the police reports against the detenu before the appropriate court and produced evidence against him so as to sustain the allegations levelled against him. The respondents having not done so and instead they have detained the detenu under the PSA;
vi. That it is a well settled proposition of law that when a person is booked in a substantive offence, the State can oppose his release on bail and even when the bail application is opposed, the person is granted bail, that order of granting bail can be challenged before the higher forum but he cannot be detained under PSA. In the instant case, even though, the detenu has been shown booked in 20 cases and in the most of the cases, he having not obtained bail, and the cases in which he has been granted bail having not been challenged by the respondents, therefore, there was no justification for respondent No.2 to detain the detenu under the provisions of PSA;
vii. That the respondent No.2 has not provided the entire material relied upon by the respondent No.2 for passing the order of detention against the detenu;
viii. That the detenu was in police custody when the order dated 13.11.2018 HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 4 of 19 was passed. It is well settled proposition of law that no order of detention can be passed against a person, who is in police custody, unless there are compelling reasons for doing so, which compelling reasons have to be stated in the grounds of detention or in the order of detention. In the instant case, no compelling reasons have been given by the detaining authority in the order of detention or the grounds of detention;
ix. That no order of detention can be passed against a person on the grounds which were in existence or were quashed by the Court when the order of detention was earlier challenged before the Court. In the instant case, prior to the passing of order dated 13.11.2018, the respondents had passed various orders of detention against the detenu in which the grounds of detention were almost same which have been used against him while issuing order of detention dated 13.11.2018; x. That the grounds of detention are vague, indefinite, untrue, uncertain and ambiguous and these grounds lack in material particulars and essential details, therefore, the detenu has been deprived of his valuable right of making a representation against the detention order.
3. Respondents, on notice, appeared and filed their counter affidavit projecting therein that the petitioner has not approached this Court with clean hands. The challenge thrown to the order is misplaced, misdirected and misconceived both in law as well as on facts. The grounds of detention are true, correct, existing and relevant without any ambiguity and completely connecting the detenu with the activities, which are prejudicial to the security of the State, which warranted preventive detention so as to stop the detenu from indulging in such activities. The preventive detention of the detenu is neither illegal nor unconstitutional. There is no other purpose behind detention of the detenu other than the one to prevent him from acting in any manner harmful to the maintenance of security of the State because the detenu has HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 5 of 19 been found advocating secession of the State from the Union of India and indulging in anti-national activities. A number of cases stand registered against the detenu, from which it is quite clear that the detenu has been a chronic and habitual in resorting to activities, which are highly prejudicial to the maintenance of the security of the State.
4. Heard learned counsel for the parties and perused the record.
5. Mr. Qayoom, learned counsel appearing for the petitioner submitted that at the very prelude, the question to be determined is as to whether fresh detention order could be passed when earlier detention order was in force. He has referred to page second of grounds of detention, wherein pertinent recitals are:
"you have finally been detained by the order of District Magistrate Kupwara vide order No.17-DMK/PSA of 2017 dated 14-112017 for indulging in anti-national activities and threat to the security of the state. Reportedly, your detention term is going to expire on 12.11.2018. In case you are allowed to remain at large there is reasonable apprehension that you shall again indulge in anti-national activities prejudicial to the security of the State, which indirectly is not only threat to people at large but against the country as a whole, because there are credible information against you of carrying your past experience in future as well. In such circumstances there is no other way, but to get you detained under the provisions of the Public Safety Act. After your arrest and detention by District Kupwara there has been a considerable improvement in the situation. You are an element who conceives the secessionist ideology and has the potential of then implementing it on the ground, the trait of your makes you a potential threat to the peace and tranquillity of the State and your release is to be considered in view of this scenario."
6. Furthermore, according to him, fresh detention order passed on 13.11.2018 makes substantial reference of earlier incidents and FIRs for justifying the fresh detention of the petitioner which, according to him, could not be done. He has, in this regard placed reliance on the judgments of Hon'ble HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 6 of 19 Apex Court in "Chhagan Bhagwan Kahar v. N. L. Kalna and others" [AIR 1989 SC 1234], and "Smt. Taramati Chandulal Sejpal vs. State of Maharashtra and anr" AIR 1981 SC 871
7. It is also the submission of learned counsel for the petitioner that the mention in the grounds of detention that "you have managed bail in FIR No.53/2013 U/S 13 ULA(P) Act" is derogatory to judicial system and ought not to have been used in the grounds of detention. The only addition of FIR No.52/2017 U/S 13 ULA(P) Act regarding the incident that Police Station, Baramulla, received an information to the effect that detenues, namely, Bashir Ahmad Sofi, Tariq Ahmad War along with other associates who are lodged in District Jail, Baramulla, were advocating secessionist/anti national sentiments among the jail inmates and have discussed the future strategy with them for carrying out illegal activities, could in no case be relied by the respondent No.2 to derive subjective satisfaction. The earlier detention order No.25/DMB/PSA/2017 dated 08.05.2017 had been quashed by the Co- ordinate Bench on 26.10.2017 in the light of principle of law laid down by the Division Bench of this Court in Tariq Ahmad Dar v. State of J&K & ors. There was no scope for attributing fresh activities to the detenu as he was not released after the quashment of earlier detention order and the necessary details in this regard have been referred in the grounds of detention, is also submitted.
8. Learned counsel for the petitioner has also reiterated the events as are referred in the petition with regard to arrest, detention and continued lodgement of the petitioner in jail. Reference of the order of Hon'ble Apex Court at para 3 (xxvi) has also been made.
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9. The learned counsel for the petitioner also contended that the order of detention dated 14.11.2017, in terms of which the detenu was ordered to be taken into preventive custody and lodged at Central Jail, Kothbalwal, Jammu, was challenged in OWP No.351/2018 but the said petition was dismissed vide order dated 07.09.2018 and against which LPA No.90/2018 was field and same has been admitted to hearing on 01.10.2018. According to him, an order passed for preventing a person from acting in any manner prejudicial to public order has to outlive its life after one year and the pendency of the LPA and the order passed by the Single Judge along with import of the said order has to be interpreted in this backdrop. Reference in this regard has been made to Section 18 and 19 of the Public Safety Act. The order of detention dated 14.11.2017, passed by the District Magistrate, Kupwara, which is subject matter of a Letters Patent Appeal, was subsisting up to the date the fresh detention order was passed on 13.11.2018. Same was not within the parameters fixed in terms of Section 18 and 19 of the Public Safety Act, is also his submission.
10. Per contra, learned counsel for the respondents, while taking reliance on the judgments reported in 1986 (1) SCC 404, "Union of India Vs. Arvind Shergill" (AIR 2000 SC 2924), and "The Secretary to Government Vs. Nabila" (2015 Cr. L. J 1364), submitted that the impugned order of detention is within the parameters of law, therefore, the petition is liable to be dismissed.
11. Considered the rival arguments and also perused the record.
12. The detention record testifies the fact that the detention order has been passed during the currence of earlier order of detention.
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13. Perusal of the detention reveals that the content and composition of the grounds of detention in successive detention orders remains same with only minor additions attributed to the developments subsequent to the detention orders, unmindful of the fact that the detenu all along remained in detention. Once we find the grounds of detention in support of quashed/revoked detention order(s) and one under challenge to be, in substance, identical, it is next to be seen what is its fall out on the detention order. The question surfaced in Chhagan Bhagwan Kahar v. N. L. Kalna and others [AIR 1989 SC 1234]. The Supreme Court held:
"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order.
14. In Jahangir Khan Fazal Khan Pathan v. The Police Commissioner, Ahmedabad and another [AIR 1989 SC 1812], the Supreme Court held:
"......It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 9 of 19 taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered."
15. Again in Ramesh v. State of Gujarat [AIR 1989 SC 1881], it is held:
"10. On a careful scrutiny of grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under Sr. Nos.1 and 2 of the table which where the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenue."
16. It is well settled law that when the detention order is quashed by the Court, grounds of the order so quashed should not be taken into consideration, either as whole or in part, even along with fresh grounds of detention for drawing subjective satisfaction to pass fresh detention order. It is to be appreciated that once the Court sets-aside the detention order, it nullifies the entire order. The Detaining Authority, therefore, cannot make use of the grounds that were relied upon to pass the earlier detention order(s) or activities that were detailed in such grounds. No such recourse is available where the earlier detention order is struck down by the Court as it sets at naught not only detention order but the grounds on which the detention order is based. A reference in this regard may as well be made to law laid down in Masrat Alam Bhat v. State & Others [2003 (II) SLJ 570]; Mst. Zahida v. State & Others HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 10 of 19 [2008 (1) SLJ 245]; Masrat Alam Bhat [2008 (II) SLJ 689] and Fayaz Ahmad Wani v. State of J&K [SLJ 2003(I) 272].
17. Next learned counsel for the petitioner submitted that the whole material forming base for the order of detention has not been supplied to the detenue which has deprived the detenue from making an effective representation against his detention, which right is guaranteed under Article 22(5) of the Constitution of India, which in turn renders the order of detention as unsustainable.
18. In opposition, learned counsel for the respondents would contend that material relied upon by the detaining authority for deriving subjective satisfaction while issuing the impugned order of detention has been supplied to the detenu. According to him, even if presumed though not admitted that the material forming base of the grounds of detention has not been supplied to the detenu, yet the non-supply of the documents would not prejudice the detenue as the details of his activities have been specifically made mention of in the grounds of detention. Furthermore, the details of past activities, as referred to in the grounds of detention, are given simply to show what was the past of the detenue, therefore, the documents which are connected with past activities of the detenue were not required to be supplied nor non-supply of such documents would cause prejudice to the detenue in making a representation. It is also contended that the power of preventive detention is different from punitive detention and preventive detention is largely based on suspicion and the Court is not an appropriate forum to investigate the question whether circumstances of suspicion exist warranting restraint on a person. Besides above, learned counsel also contended that the requisite material has HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 11 of 19 been supplied to the detenue so as to enable him to file a representation which he has not chosen to do. In support of his argument, learned counsel for the respondents placed on various judgments which include judgments of the Hon'ble Supreme Court in "Hardhan Saha and Ors. Vs. State of West Bengal and Ors." reported in (1975) 3 SCC 198 and "The Secretary to Government Vs. Nabila" 2015 Cr. L. J 1364.
19. Perusal of the detention order reveals the detenue having been provided the copies of FIR Nos.52/2017, 258/2016, 99/2008, 69/199, 215/2016 and 137/2013, copies of arrest memo (five leaves), copy of seizure memo (one leaf), copies of bail orders (three leaves) and copies of statements (two leaves) (in total 17 leaves) and it also reveals the detenu having been made conversant with the contents of detention warrant and the grounds of detention in Urdu language. It may, however, need a mention here that with the counter affidavit no document has been brought on record from which it could be inferred that Senior Superintendent of Police, Baramuulla, has done what was required in terms of Note-3 of communication dated 13.11.2018 to be conveyed to the detenu.
20. Past history and activities of the detenue have been narrated in the grounds of detention but reference of the documents in the grounds of detention and the order of detention would suggest that it was imperative for the detaining authority to supply copies of the documents to the detenue, which has not been done which in turn deprived the detenue of his right of making an effective representation against his detention. Infringement of such right as guaranteed under Article 22(5) of the Constitution of India would render the order of detention as illegal.
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21. The grounds under Article 22(5) means all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. Nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenue. that is the plain requirement of the first safeguard in Article 22(5) of the Constitution of India. The second safeguard in Article 22(5) requires that the detenue shall be afforded the earliest opportunity of making representation against the order of detention. No avoidable delay, no shortfall in the materials communicated shall stand in the way of the detenue in making an earlier, yet comprehensive and effective, representation in regard to all basic facts and materials which have influenced the detaining authority in making the order of detention depriving him of his freedom. 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 materials which the detaining authority considers while framing his subjective satisfaction;
(iv) Detention order and also the police report or dossier, if any.
22. The word 'grounds' used in clause (5) of Article 22 of the Constitution means not only the materials 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 which material he based his satisfaction, failure to do so renders the detention illegal. To communication the bare HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 13 of 19 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 "Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home" reported in 1999 S.L.J 241.
23. Further, non-supply of the relevant material/documents, from which detaining authority derived subjective, satisfaction, would amount of violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right. 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), wherein it has been held:
"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
24. In para 27 and 28 of the judgment of the Hon'ble Apex Court in "Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 2184, has held as under:
"27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 14 of 19 becomes illegal and detention order has to be quashed on that ground alone.
28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.
25. It is also quite apposite to quote para 10 of the judgment of the Hon'ble Apex Court in "Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others", (1982) 3 SCC 440:
"10. 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 Article 22 (5) of the Constitution. Relying upon this legal position counsel for the petitioner urged before us that in the HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 15 of 19 instant case a breach of the mandate contained in Article 22 (5) read with Section 3 (3) of the COFEPOSA is clearly involved because of three things that have happened, namely,
(i) supply of Urdu translations of the bulk of documents and statements incorporated in the grounds and relied upon by the detaining authority was delayed beyond the normal period of 5 days without any exceptional circumstances obtaining in the matter, (ii) the alleged exceptional circumstances purporting to justify the delay and the fact that the reasons had been recorded in writing were not communicated to the detenu which has prevented him from making effective representation against his continued detention and (iii) Urdu translations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have not been supplied to him at all. As regards the first two aspects counsel relied upon two decisions of the Patna High Court, namely, Bishwa Mohan Kumar Sinha v. State of Bihar and Ors.(1) and Bishwanath Prasad Keshari v. State of Bihar & Ors.(2) where the Patna High Court has taken the view that not merely should the exceptional circumstances exist justifying the delayed supply of the grounds of detention but these should be communicated to the detenu to enable him to make an effective representation. Counsel urged that because of the aforesaid failure the continued detention of the petitioner must be held to be illegal. We find considerable force in these submissions made by the counsel for the petitioner."
26. In Dr. Ram Krishan Bhardwaj v. The State of Delhi and Ors. [1953 SCR 708], the Supreme Court, while interpreting Article 22(5) of the Constitution, observed as under:
".......Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 16 of 19 jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned in sub-paragraph
(e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith."
27. The right which the detenu enjoys under Article 22(5) is of immense importance. In order to properly comprehend the submissions of the detenu, Article 22(5) is reproduced as under:
"22(5). 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."
28. This Article of the Constitution can be broadly classified into two categories: (i) the grounds on which the detention order is passed must be communicated to the detenu as expeditiously as possible and (ii) proper opportunity of making representation against the detention order be provided.
29. The preventive detention law makes room for detention of a person HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 17 of 19 without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenu by the Constitution and the preventive detention law, should be strictly followed. The Supreme Court in Rekha v. State of Tamil Nadu Through Secretary to Government and Anr. [(2011) 5 SCC 244], while emphasizing need to adhere to the procedural safeguards, observed:-
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion", The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.
30. The Court making reference to law laid down in "Kamleshwar Ishwar Prasad Patel Vs. Union of India and Others (1995) 2 SCC 51 (para 49) observed:
HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 18 of 19 "the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue".
31. The Court also quoted with approval following observation made in Ratan Singh Vs. State of Punjab and others (1981 (4) SCC 1981) :-
But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at- least those safeguards are not denied to the detenu's"
32. Law on the subject was succinctly laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and another (1987 2 SCC 22) in following words:
"The procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the Detaining Authority. The procedural requirements are, therefore to be strictly complied with if any value is to be attached to the liberty of the subject and the Constitutional rights guaranteed to him in that regard".
33. The Constitution of India - Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to the detenu - first that the detenu is informed of grounds of detention that prompted the detaining authority to pass the detention order and second that the detenu is allowed to HCP No.443/2018 MOHAMMAD ALTAF BHAT 2019.05.20 09:56 I attest to the accuracy and integrity of this document Page 19 of 19 represent against his/her detention immediately after the detention order is made or executed. The Constitutional and Statutory safeguards guaranteed to the detenu are to be meaningful only if the detenu is handed over the material referred to in the grounds of detention that lead to subjective satisfaction that the preventive detention of detenu is necessary to prevent him from acting in any manner prejudicial to the security of the State of public order and further it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the detenu guessing about what really weighed with the detaining authority to make the order.
34. In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.
35. For what has been stated above, the petition is allowed and detention order No.90/DMB/PSA/2018 dated 13.11.2018, passed by the District Magistrate, Baramulla - respondent No. 2, is quashed. Resultantly, the respondents are directed to release the detenu from preventive detention, provided he is not required in connection with any other case.
36. The detention record, as produced, be returned to the learned counsel for the respondents.
(Rashid Ali Dar) Judge Srinagar 16.05.2019 "Bhat Altaf, PS"
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