Jammu & Kashmir High Court - Srinagar Bench
Farooq Ahmad Shaikh vs State And Ors on 31 October, 2017
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: LPA(HC) 107/2017 Dated : 31st of Oct. 2017
FAROOQ AHMAD SHAIKH VERSUS STATE AND ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE RAMALINGAM SUDHAKAR- JUDGE
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes.
ii. Whether to be approved for
reporting in Digest/Journal : Yes
FOR THE APPELLANT/s : MR. B.A.TAK VICE MR. M.A.QAYOOM
FOR THE RESPONDENT/s: . MR. Q.R.SHAMAS, Dy.AG
(PER HANJURA-J) 01/ By dint of this LPA, the appellant has assailed the order dated 21st of June, 2017 of the writ Court, passed in HCP No. 642/2016 on the premise that, while dismissing the writ petition, the writ Court has observed that the perusal of the record would reveal that the grounds of detention were explained to the detenue in the language he understood. However, the fact remains that the grounds of detention were not explained to the detenue, rendering the order of detention liable to be set aside.
02/ The appellant has proceeded to state that the detenue has not been provided the material which formed the basis of passing of the detention order. Therefore, the detenue has been deprived of the right to file an effective representation against his order of detention. Not only this, the mandate of section 13 of the Public Safety Act (hereinafter called the Act) has also been violated with impunity. The learned writ Court has not considered these grounds and has proceeded to pass the impugned judgement in an illegal and improper manner.
LPA (HC) 107/2017 1 of 16 03/ It is also pleaded by the appellant that the respondents, in their
reply affidavit, have stated that the detention warrant was executed on 27-11-2016 by one ASI Ghulam Mohammad of police station Bandipora, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said ASI ought to have filed an affidavit to substantiate so, which has not been done in the case on hand. The learned Single Judge has not taken this important aspect of the matter into account. Therefore, the appeal deserves to be allowed, as a consequence of which, the impugned judgement/order dated 21-06-2017, passed by the learned writ Court, is liable to be set aside.
04/ Before adverting to the merits of the appeal, it will be profitable to quote the relevant excerpts of the order of the writ Court that have a bearing on the questions/issues raised in the writ petition. These are as under :
"Before adverting to the above provision, it be mentioned here that once an authority mentioned in sub section (2) of section 8 of the Act exercises the power conferred on it thereunder and fulfills the procedural safeguards of furnishing grounds of detention and the relevant relied upon material to the detenue, such authority has limited role vis-a-vis the detention of the concerned, as the purpose of conferment of the power under section 8 stands accomplished. This becomes clear from section 19 of the Act as well. Thereafter all other safeguards enshrined in article 22(5) of the Constitution of India and requirements prescribed by the relevant law have to be fulfilled by the Government.
The perusal of the record would further reveal that the grounds of detention have been explained to the detenue in the language he understands and the copy has been handed over to him along with the records and the detenue has been informed about his right of making representation against his detention. This would mean that the requirement of section 25 of the Act has been fulfilled.
The next contention of the learned counsel for the petitioner that the impugned order is an outcome of non application of mind is also belied by the records produced by the learned State counsel. The records would show as to how the detenue has been uncontrollable despite having been framed in various F.I.Rs allegedly for committing various offences including the unlawful activities. The detailed grounds of detention and the records referred to the detaining authority LPA (HC) 107/2017 2 of 16 were sufficient to derive satisfaction as regards the detention of detenue under the provisions of the Act. Thus the order does not appear to be suffering from non application of mind.
As per the settled position of law if a detention order is issued on more than one ground independent of each other, the detention order will survive even if one of the grounds is found to be unfound or legally unsustainable. In the present case the detention order is issued on more than one ground independent of each other, therefore, the detention order does not get vitiated even if one of the grounds taken in support of the petition is turned affirmative. My this view is fortified by a law laid down by the Supreme Court in case titled Gautam Jain V. Union of India and another, reported as 2017 (1) Jammu & Kashmir Law times, vol. 1 (SC) p.1.
The next ground taken by the detenue that the detaining authority did not record as to under which compelling reasons the detenue is required to be kept in custody under preventive laws when he was already in jail and was not granted bail.
Since the Court has already held that the detention survives even if one of the grounds taken in support of the petition remains unexplained or proves to be bad in law, therefore, the detention order can be maintained in absence of any explanation on this count by the respondents."
05/ Heard and considered. 06/ Learned counsel for the appellant has argued it firstly that the
judgement delivered by the writ court is liable to be set aside on the ground that since the detenue was already in custody and had not applied for bail in any of the cases registered against him, therefore, there was no possibility of him getting released on bail and indulge in the activities which are said to be prejudicial to the security of the State.
07/ The second line of the argument of the learned counsel for the appellant is that the detenue has not been provided the material that formed the baseline of the detention order, as a corollary to which, he has been prevented from making an effective representation against the order of detention as postulated and provided under law. 08/ Thirdly, it has been contended that in the grounds of detention, the detenue has been informed that you have a right of making a representation against your detention, if you so choose. In the communication bearing No. DMB/PSA/2016/608-10 dated LPA (HC) 107/2017 3 of 16 23-11-2016 also, the detenue has been told that you may make a representation to the Government against the said detention. In the execution report it has been stated that the detenue has been informed that you can make a representation to the Government against the detention order, if you so desire. It has been argued that by having resort to this process, the detenue has been deprived of his right to make a representation before the detaining authority - respondent No.2 against the order of detention.
09/ Per contra the learned counsel for the respondents has argued that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. Central Jail, Kot Bhalwal. Therefore, the order of the writ Court does not suffer from any vice. It has been passed with due diligence. It will sustain in the eyes of the law and that it is neither perverse nor bad.
10/ Looking at the first limb of the argument, it needs to be said that there is no denial of the fact that the detenue was in custody in F.I.R No. 145/2016 at the moment when the order of detention was passed. It is also not in dispute that the detenue had not applied for bail in any of the following F.I.Rs that were registered against him at police station Bandipora :
"FIR NO. 85/2016 u/s 147,148,149,336,353,427 RPC FIR NO. 88/2016, u/s 148,149,336,353, 427 RPC FIR NO. 116 /2016 , u/s , 307,148,149,336,332, 353,427 RPC FIR NO. 145/2016, u/s 307,147,148,149,336,353,332 RPC".
11/ Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, the question that arises for consideration is could an order of detention be passed on the face LPA (HC) 107/2017 4 of 16 of such an eventuality ? The answer to this question is an emphatic "No" taking into consideration the law laid down by the apex Court of the country in paragraph (24) of the judgement passed in the case of Sama Aruna vs. State of Telangana and another, reported in AIR 2017 SC 2662, which fits to a "Tee" to the facts of the instant case and it reads as under :
"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows :
"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."
12/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph (13) of the judgement delivered in the case of V.Shantha v. State of Telangana and others, reported in AIR 2017 SC 2625, which applies to the instant case on all the fours and reads as under :
"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public LPA (HC) 107/2017 5 of 16 order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."
13/ Testing the instant case on the touch stone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the JKPSA, when he was already in the custody of the police authorities. His custody in police for the offences stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against zealously by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to assail the order(s) in the higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land.
14/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must LPA (HC) 107/2017 6 of 16 confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." 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. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that 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 rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, 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 detenues. 15/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind LPA (HC) 107/2017 7 of 16 the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, 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.
16/ The second contention of the learned counsel for the appellant is that the material that formed the bedrock of the detention of the detenue has not been provided to him which has prevented him to file an effective representation against the order of detention.
17/ In sub paragraphs (d & e) of paragraph (1) of the reply affidavit, the detaining authority has pleaded that the detention warrant was executed on 27-11-2016 by ASI Ghulam Mohammad Police Station, Bandipora. The contents of the detention warrant and the grounds of detention were read over to the detenue in English language and were also explained to him in kashmiri language which he understood. It is also pleaded that the material (relevant documents) including detention order & grounds of detention were served on the detenue through Assistant Superintendent of police, Kot Bhalwal Jail, Jammu, along with the above documents and the copy of the FIR was also provided to the detenue in order to enable him to make an effective representation to the Government. It is also pleaded that the detenue was informed of his right to make a representation to the Government against the detention order. 18/ The District Magistrate, Bandipora, authorized the detention of the detenue. The Execution Report, made in compliance of the order of detention, which is relevant in the context of the pleadings detailed at sub paragraphs (d & e) of paragraph (1) of the reply LPA (HC) 107/2017 8 of 16 affidavit, is reproduced herein below verbatim et literatim :
"Execution Report In compliance to District Magistrate Bandipora vide order No. 52/DMB/PSA/2016 dated 23-11-2016, issued under endorsement DMB/PSA/2016/602-07 dated 23-11-2016, I , ASI, Ghulam Mohammad No. 841645/EXK of p/s Bandipora, took the custody of Farooq Ahmad Sheikh S/O Mohammad Sultan Sheikh R/O Patushai, Tehsil & District Bandipora from P/S Bandipora on 26-11-2016 for execution of PSA warrant. The PSA detention warrant has been executed at Central Jail Kot Bhalwal today on 27- 11-2016. The contents of detention warrant and grounds of detention have been read over to the said detenue in english and explained in urdu/kashmiri languages which he understood fully, in lieu of which his signature has been obtained below at mark (A).
The detenue along with relevant documents i.e. copies of detention warrant and the grounds of detention has been handed over to the jail authorities of Central Jail, Jammu, Kot Bhalwal, on 27-11-2016 against proper receipt for further lodgement. The detenue has also been informed that he can make representation to the Government against his detention order, if he so desires.
Sd/ at "A"
Farooq Ahmad Sheikh.
Handed over by :
Sd/ ASI Ghulam Mohammad No. EXK/841645 p/s Bandipora.
Executing Officer. Taken over by :
Sd/ sd/
ASI Ghulam Mohammad Asstt. Superintendent
No. EXK/841645 Central Jail, Kot Bhalwal,
P/S Bandipora. Jammu."
19/ From a bare glimpse of the execution report supra, what gets
revealed is that the detention warrant has been executed on 27-
11-2016 at Central Jail, Kot Bhalwal, Jammu. It also states that the contents of detention warrant and grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully and in token thereof, his signature was attained at Mark (A). The execution report provides that the detenue was handed over to the jail authorities of Central Jail, Kot Bhalwal, on 27-11-2016 against proper receipt for further lodgement, along with the relevant documents, i.e. copies of the detention warrant and the grounds of detention.
LPA (HC) 107/2017 9 of 16 20/ From the perusal of the Execution Report what can be said, in
unequivocal terms, is that the detenue, along with the documents in the shape of the copy of detention order and the copy of the grounds of detention and not the copies of the F.I.Rs, was handed over to the jail authorities of the Central Jail, Kot Bhalwal, against proper receipt and these were read over and explained to him. Therefore, it can, irresistibly, be concluded that the copies of the 'First Information Reports (FIRs)' bearing NOs. 85/2016, 88/2016, 116/2016 & 145/2016 and the record of the investigation, made in them, were not made available to the detenue, which is an infraction of law as it has hampered him from making an effective representation as provided under law.
21/ Looking at the said ground from yet another angle, what can be said is that to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under :
"1/ 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 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 assesse 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 LPA (HC) 107/2017 10 of 16 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."
22/ The third limb of the argument of the learned counsel for the appellant is that in the grounds of detention the detenue has been informed that you have a right to make a representation against your detention and vide communication bearing No. DMB/PSA/2016/608-10 dated 23-11-2016, the detenue has been told that you can make a representation to the Government against the order of detention. In the execution report also, the detenue has been informed that you can make a representation to the Government against the detention order, if you so choose. However, the detenue has not been informed that you have a right to make a representation before the detaining authority. This, according to the learned counsel for the petitioner, renders the detention order invalid under law. To substantiate his argument, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), decided on 09- 06-2017, the relevant excerpts of which are reproduced below :
"6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India.
LPA (HC) 107/2017 11 of 16 In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.
7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order.
8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired.
Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.
9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub- Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order.
Section 19 of the Jammu and Kashmir Public LPA (HC) 107/2017 12 of 16 Safety Act, 1978, reads as under:- "19.
Revocation of detention orders.-
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8.
(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -
(i) the earlier order of detention or its continuance is not legal on account of any technical defect or
(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."
10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-
" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.
Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to LPA (HC) 107/2017 13 of 16 the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
11. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.
13. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.
14. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an LPA (HC) 107/2017 14 of 16 order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-
"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."
15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.
16. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.
17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as his detention order is concerned.
18. The appeal is allowed. The impugned order is set aside."
23/ The judgement cited above is manifestly clear. Applying its ratio to the facts of the instant case, it is evident that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make LPA (HC) 107/2017 15 of 16 a representation to the Detaining Authority. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention. 24/ Viewed in the context of all that has been said and done above, the impugned judgement dated 21st of June, 2017, of the learned Single Judge, passed in HC(P) 642/2016, is set aside, as a consequence of which, the impugned order of detention bearing No. 52/DMB/PSA of 2016 dated 23rd of November, 2016, is quashed with further direction to the respondents to release the person of Shri Farooq Ahmad Sheikh S/O Mohammad Sultan Sheikh, R/O Patushai, Bandipora, Tehsil & District Bandipora, Kashmir, from the preventive custody forthwith.
25/ The record, produced by Mr. Q.R.Shamas, learned Dy.AG, is returned to him in the open Court.
TARIQ Mota SRINAGAR.
31 -10--2017 (M.K.HANJURA) (RAMALINGAM SUDHAKAR)
JUDGE JUDGE
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