Jammu & Kashmir High Court - Srinagar Bench
Naseer Ahmad Dar vs Union Territory Of J&K And on 13 April, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual mode from Jammu)
WP (Crl) No. 202/2021
Reserved on : 23.02.2023
Pronounced on : 13.04.2023
Naseer Ahmad Dar .... Petitioner/Appellant(s)
Through:- Mr. G. N. Shaheen, Advocate.
V/s
Union Territory of J&K and .....Respondent(s)
another
Through:- Mr. Raies-Ud-Din Ganaie, Dy.A.G.
CORAM:HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
BRIEF FACTS :-
1. Through the medium of the present petition, the petitioner-detenue-
Naseer Ahmad Dar S/o Late Gh. Mohd.Dar R/o Dar Mohalla Bunderkund, District Ganderbal, through his cousin brother, namely, Adil Ahmad Dar is calling in question the Order of Detention bearing No. 05-DMG-PSA-2021 dated 21.10.2021 passed by respondent No.2 i.e. District Magistrate, Ganderbal with a prayer further seeking direction to the respondents to release the detenue. The case of the petitioner-detenue is that he has been detained in terms of the aforementioned order which has been issued by respondent No.2 under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 and was lodged in Central Jail, Srinagar. The further case of the petitioner-detenue is that respondent No.2 without any material and without any basis passed the impugned order which was executed by the Police and the 2 WP (Crl) No. 202/2021 detenue was arrested on 20.10.2021 by the Police Station, Ganderbal and was subsequently shifted to Central Jail, Srinagar, wherefrom, the detenue was shifted to Central Jail, Agra to be detained in preventive custody in terms of the impugned order of detention.
2. Although the petitioner has called in question order of detention by specifying order dated 22.10.2021 but infact the said order is dated 21.10.2021 and no such quashment has been sought of the aforesaid order, which seems to be inadvertent mistake on behalf of the petitioner while filing the present petition.
3. Feeling aggrieved of the same, the present petition has been preferred against the impugned Detention Order as it violates the fundamental right of the detenue as guaranteed under Article 22 (5) of the Constitution of India.
ARGUMENTS ON BEHALF OF THE PETITIONER :-
4. Mr. G.N.Shaheen, learned counsel appearing on behalf of the petitioner-detenue submits that the main grounds on which the detention order is sought to be quashed are that the allegations/grounds of detention are vague and mere assertion of the detaining authority and no prudent man can make an effective representation against these allegations. It is being pleaded in the petition that the detaining authority-respondent No.2 has not attributed any specific allegation against the detenue. Furthermore, it is stated that the cases mentioned in the grounds of detention have no nexus with the detenue and have been fabricated by the police with a view to justify detention. The further argument of the 3 WP (Crl) No. 202/2021 petitioner-detenue is that the detaining authority has mentioned five FIRs in the grounds of detention, however, the allegations made against the detenue are far from reality. The further case of the petitioner-detenue is that the detaining authority has not given any reasonable justification to pass the detention order, as such, the impugned order of detention suffers from complete non-application of mind on the part of the detaining authority. It has been further submitted that the grounds of detention are replica of the police dossier and clearly depicts the non-application of mind on the part of the detaining authority. Learned counsel for the petitioner- detenue has further submitted that respondent No.2 has not furnished the dossier or the so called connected material relied upon by respondent No.2 for passing the order of detention nor the relevant material such as copy of FIR, statement under Section 161 Cr.P.C of the cases mentioned in the grounds of detention to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by the detaining authority for involvement of the detenue in the alleged activities.
5. The further case of the petitioner-detenue is that he could not make any representation to the Government on account of the fact that the detenue was taken to Central Jail, Agra which is 600 Km away from Kashmir instead of the lodgment given in the detention order i.e. Central Jail, Srinagar and has been put in solitary confinement with no access to family members and legal consultation, thus, 4 WP (Crl) No. 202/2021 deprived the detenue of making any representation to the Government.
6. It is being pleaded by the petitioner-detenue in the petition that he understands only Kashmiri and Urdu languages but the order of detention is in English language and that too in hyper technical words and no translated script in Kashmiri was furnished to the detenue nor read over and explained to him in the language he understands which is a pre-requisite for maintainability of the detention order. It is further pleaded by the learned counsel for the petitioner that non-supply of the translated script as well as non- explanations of the grounds of detention has prevented the detenue from making any effective representation and has violated the provisions of law as such, the detention order deserves its quashment.
7. The further case of the petitioner-detenue is that the detaining authority has not supplied whole material relied upon by the detaining authority, therefore, non-supply of the whole material has caused serious prejudice to the detenue in making effective representation to the Government against the order of detention.
8. Learned counsel appearing on behalf of the petitioner-detenue has vehemently argued that the grounds of detention referred to the alleged activities of the detenue with all vagueness and ambiguity from its contents. The allegations made in the grounds of detention are nothing but bald statements without any details. It has been further argued that neither the investigation report nor the evidence was ever provided to the detenue and the grounds of detention are 5 WP (Crl) No. 202/2021 completely silent about the details of investigation. The further case of the petitioner-detenue is that the detaining authority without perusing the details of investigation, has completely relied on the vague statements made in the dossier and passed the impugned detention order without application of mind and the same is violative of the fundamental rights of the petitioner. The further case of the petitioner is that there is total non- application of mind and lack of certainty on part of the detaining authority which has referred both the expressions namely "activities pre-judicial to the security of the state" and "activities pre-judicial to the maintenance of the public order" with a wavering mind and uncertainty which renders the order of detention as illegal in the light of the law laid down by the Supreme Court.
ARGUMENTS ON BEHALF OF THE RESPONDENTS:
9. Per contra, Mr. Raies-Ud-Din Ganie, learned Deputy Advocate General appearing on behalf of the respondents submits that he has filed a detailed reply in which the specific stand has been taken that the basis of detention is the satisfaction of the Executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and prevented him by detention from doing the same. Learned counsel has further argued that the detenue was detained legally under the provisions of the Public Safety Act and all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority by keeping in mind the very object of law of preventive detention being not punitive, but only preventive. Further case of the learned 6 WP (Crl) No. 202/2021 counsel for the respondents is that in case of preventive detention no offence is to be proved nor is any charge formulated but the justification of such detention is suspension of reasonability and there is no criminal conviction which can only be warranted by legal evidence.
10. The further stand of the respondents is that the detaining authority has passed the order of detention after deriving subjective satisfaction in the matter and the grounds of detention, order of detention as well as the entire material relied upon by the detaining authority came to be furnished to the detenue well within the statutory period provided under the provisions of Article 22 (5) of the Constitution of India read with Section 13 of the Public Safety Act. The further stand of the respondents is that in compliance to the District Magistrate's detention order, the warrant was accordingly executed and the detenue was handed over to the Sr. Superintendent of Police, Central Jail, Srinagar for lodgment. The respondents have taken the specific stand that the detention order/warrant and the grounds of detention were read over and explained to the detenue in the language which he fully understood and consequently the detenue has subscribed his signatures on the Execution report. The detenue was well informed about his right of making a representation to the detaining authority or to the Government against his detention but the detenue despite having received the aforesaid entire material has not chosen to make any representation against his detention.
7 WP (Crl) No. 202/2021
11. Learned Deputy Advocate General has argued that the grounds of detention are precise, proximate and relevant and there is no vagueness in the grounds of detention. The further stand of the respondents is that the respondents have considered the entire material and have found activities of the detenue prejudicial to the security of the State and there were compelling reasons to detain the detenue under the Public Safety Act and consequently the order of detention came to be passed which is perfectly legal, valid and justified. The procedural safeguards prescribed under the provisions of the Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the present case.
LEGAL ANALYSIS:
12. Heard learned counsel for the parties at length and perused the record which has been supplied to this court by the learned Deputy Advocate General appearing on behalf of the respondents.
13. I have gone through the record supplied to me and from perusal of the record with particular reference to the grounds of detention it is emphatically clear that the detaining authority without application of mind and lack of certainty has passed the impugned order by reflecting both the expressions i.e., "activities prejudicial to the Security of the State" and "activities prejudicial to the maintenance of public order" which vitiates the order of detention in the light of the law laid down by the Hon'ble Supreme Court in various authoritative pronouncements. The detaining authority was not certain on which ground the order impugned is 8 WP (Crl) No. 202/2021 being passed and thus, it is apparent from the record that there is total non-application of mind and lack of certainty on the part of the detaining authority to detain the detenue.
14. In Dr. Ram Manohar Lohia Vs. State of Bihar and others, reported as 1966 AIR SC 740, it has been held by the Hon'ble Supreme Court as under: -
"The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
The expression 'public order' has been construed by this Court in a few cases, the latest of them being The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia(1) wherein it was said at p. 839 :
"'Public order' is synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State."9 WP (Crl) No. 202/2021
The expression 'maintenance of law and order' would cover 'maintenance of public safety and tranquillity'. it - may be, as urged for the petitioner, an expression of wider import than public order but, in the context in which it is used in the detention order and in view of its use generally, it should be construed to mean maintenance of law and order in regard to the maintenance of public tranquillity. It is not usually used merely with reference to enforcement of law by the agency of the State prose cuting offenders against any of the numerous laws enacted for the purposes of a well- regulated society. Simple and ostensibly minor incidents at times lead to widespread disturbances affecting public safety and tranquillity.
Even in such cases, this Court has held in Dwarka Das State of J & K(1):
"The principle underlying all these decisions is this. Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non- existent or irrelevant, the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If some out' of them are found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded, 10 WP (Crl) No. 202/2021 might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a compara- tively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid."
15. The Hon'ble Apex Court in G. M. Shah vs. State of J&K reported in 1980 (AIR) SC 494, the expressions "law and order", "public order" and "security of the State" are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State". Thus, in the light of the aforesaid settled legal position, the order impugned gets vitiated as the detaining authority without application of mind and lack of certainty has used both the expressions.
In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person's greatest of human freedoms, i.e., personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of 11 WP (Crl) No. 202/2021 personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty.
16. The petitioner has taken a specific ground that the respondent No.2 has not furnished the dossier or the so called connecting material relied upon by the detaining authority while passing the order of detention nor the relevant material, such as, copy of the FIR, statement recorded under Section 161 Cr.P.C of the cases mentioned in the grounds of detention have been furnished to the detenue to enable him to make an effective representation by giving his version of facts attributed to him. This aspect of the matter is also corroborated from the bare perusal of the record which has been provided to this Court and also from bare perusal of affidavit of Sub-Inspector Mohammad Shafi which has been placed on record as Annexure-II with the reply, wherein in para (3), it has been mentioned that "while executing the said warrant, I furnished all the documents upon which the detaining authority has relied upon i.e. copy of Warrant, Notice, Grounds of detention and other relevant documents." There is no reference in the record that the dossier has been supplied to the petitioner or whether the copies of the FIR and the statements recorded under Section 161 Cr.P.C have been provided to the 12 WP (Crl) No. 202/2021 petitioner. Even there is no specific denial in the objections filed by the respondents and in absence of any specific denial in the counter affidavit, it can safely be concluded that the assertion of the petitioner that the dossier and the connecting material have not been supplied to him is accepted to be true.
17. The Hon'ble Apex Court in the judgment rendered in the case of "Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors." (AIR 1999 SC 3051), has held as under: -
"...12.....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 ground on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
"13. The words "grounds" used in clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on which those facts or conclusions which constitute "grounds" are based."
18. Reliance has been placed on a recent judgment of Co-ordinate Bench of this Court in case titled Khalid Nazir Wagay Vs. Union Territory of J&K & ors., in WP(Crl) No. 132/2022, decided on 09.02.2023, it has been held that:-
"8. It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenu. If we have a look at the grounds 13 WP (Crl) No. 202/2021 of detention, it bears reference to three FIRs, i.e., FIR Nos.183/2016, 191/2016 and 313/2017. It was incumbent upon respondents to furnish not only the copy of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner's involvement in the said FIRs is shown.
9. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenu in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. The detention authorities inability to provide the whole material makes the detention order unenforceable and unconstitutional."
19. This Court in Gulzar Ahmad Sheikh Vs. Union Territory of J&K WP(Crl) No.139/2021 decided on 21.05.2022, has held as under:-
"Respondents have, therefore, failed to supply the dossier, FIR and other record of the case, based whereupon the order of detention had been passed to detain the detenue. The detenue has thus, been prevented from making an effective and meaningful representation in accordance with law and his rights under Article 22 of the Constitution of India, again lending substance to the challenge to the detention order."
So far as the contours of this requirement and sufficient compliance thereof is concerned, reliance can be placed on the judgment of the Supreme Court reported as AIR 1999 SC 3051 14 WP (Crl) No. 202/2021 Sophia Gulam Mohd. Bham, vs. State of Maharashtra'. Paras 12, 13, and 14 of the same read as under:
"The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.
Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under:
"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."
The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carries the same philosophy that there should not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. The right to be communicated the grounds of detention 15 WP (Crl) No. 202/2021 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 detenu 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 the detenu 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."
In view of the above legal position, as stated above and in particular having regard to the fact that an order of preventive detention against a person passed at a time when that person is already in the custody of the Authorities for commission of an act under substantive law, is illegal unless there is possibility of immediate release of the person from custody in the substantive offence and there are compelling reasons for passing of the order of preventive detention. Such a situation is required to be reflected in the order of detention or the grounds of detention formulated by the detaining authority. Non-furnishing of the whole material, on which the detention order has been based, to the detenue has also made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable. The impugned order is, therefore, liable to be quashed on these counts alone."
20. The detaining authority had mentioned five FIRs in the grounds of detention and the material of these five FIRs as per the stand of the petitioner was not provided to the detenue nor the detaining authority has furnished seizure memo, statement of witnesses recorded under Section 161 Cr.P.C, bail granted in two FIRs was also not provided to the detenue, therefore, the detenue was denied of making an effective representation in the aforesaid matter which violates his constitutional right.
16 WP (Crl) No. 202/2021Although, the dossier has not been supplied to the detenu, yet, I have gone through the same after perusing the record supplied to me and I am of the view that the grounds of detention are replica of dossier.
21. The Coordinate Bench of this court in Nazir Ahmad War Vs. UT of J&K and another WP (Crl) No.131/2021, decided on 28.04.2022 has observed in para (7) as under:-
"7. This Court in the case of Noor-ud-Din Shah v. State of J&K &Ors. 1989 SLJ 1, quashed the detention order as it was found that grounds of detention was reproduction of the dossier supplied to the detaining authority and held that it amounted to non-application of mind. The Court observed:
"I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenu in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenu in the dossier were really going to affect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so 17 WP (Crl) No. 202/2021 as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order ina routine manner being in different to the import of preventive detention as or detained in the Act, passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act."
22. I am fortified by the observations of the Hon'ble Supreme Court in case titled Jai Singh &ors. vs. State of J&K (AIR 1985 SC 764), which is reproduced as under:-
"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ......"
Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of 18 WP (Crl) No. 202/2021 detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."
23. The further stand of the petitioner-detenue is that the detenue understands only Urdu and Kashmiri languages and no translated script in Kashmiri or Urdu was furnished to the detenue nor the grounds were read over and explained to the detenue in Urdu or Kashmiri language so that he could have made an effective representation to that extent. The executing authority has not filed any affidavit that he has supplied the translated script to the detenue. Thus, the non-supply of the translated script as well as not explaining the grounds of detention to the detenue prevented him from making an effective representation and the same is violative of Article 22 (5) of the Constitution of India.
24. Further as per the record, it is manifestly clear that the detaining authority has not applied its independent mind while passing the order of detention which is pre-requisite as the grounds of detention are replica of the police dossier (which has not been supplied to the detenue) and clearly depicts the non-application of mind on part of the detaining authority before arriving at a 19 WP (Crl) No. 202/2021 subjective satisfaction. Thus, the order impugned is without application of mind and cannot sustain the test of law and liable to be quashed.
25. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. Irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. One irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated in the mind of the appropriate authority, and contributed to his satisfaction that is was necessary to detain the detenue in order to prevent him from acting in any manner prejudicial to the maintenance of the public order or security of the State.
26. In Smt. Shalini Soni and others v. Union of India and others, (1980) 4 SCC 544, the Hon'ble Supreme Court aptly observed that the accused must have proper opportunity of making an effective representation and the operative portion of the same is reproduced as under: -
20 WP (Crl) No. 202/2021
"7.....communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second fact of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds"
in Artice 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self- sufficient and self-explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'." 21 WP (Crl) No. 202/2021
27. I am fortified by the view of the Hon'ble Supreme Court in case titled "Thahira Haris etc. v. Government of Karnataka and others" (2009) 11 SCC 438, which is reproduced as under:-
"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 material 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."
28. I am also fortified by the view of the Hon'ble Supreme Court in case titled "Khudiram Das v. The State of West Bengal and others" (AIR 1975 SC 550), which is reproduced as under:-
" ...Section 8(1) of the Act, which merely re-enacts the constitutional requirements of Article 22 (5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were 22 WP (Crl) No. 202/2021 before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority."
29. From the above settled legal position, it is clear that if grounds of detention and dossier are similar in language, it would tantamount to non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar expressions which shows that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone.
30. Admittedly, in the present case, dossier, seizure memo, statements of witnesses recorded under Section 161 Cr.P.C and bail orders passed in two FIRs were not provided to the detenue which deprived the detenue to make an effective representation and on this ground also, the order gets vitiated and liable to be set aside.
31. Thus, the contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to the detenue, appears to be 23 WP (Crl) No. 202/2021 well-founded. As the detenue's right to make representation has been reduced to idle formality by debarring his access to the documents.
32. The stand taken by the respondents that the detenue has failed to file representation inspite of the fact that he was informed to file the representation. In this regard, I am of the opinion that an effective representation can be made against the order of detention only when copies of the material/documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention record was supplied to him. It is only when the detenue has looked into those documents, read and understood their contents, it can be said that the detenue can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22(5) of the Constitution which provides as under :-
"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."
33. The above statutory provision clearly proves that when a person who is detained in pursuance of the order of preventive detention he would have to be provided with the grounds of detention to which an order was made and all the material for making a 24 WP (Crl) No. 202/2021 representation against the said order. These are the rights which have been guaranteed to the person provided by the above mentioned clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based, to the detenue. The use of the words "earliest opportunity" also carry the same philosophy that there should not be any delay in affording an adequate opportunity to the detenue for making a representation against the order of detention. 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. The word "grounds" used in clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on which those facts or conclusions which constitute "grounds" are based." 25 WP (Crl) No. 202/2021
34. Admittedly, in the present case, the whole material was not supplied to the detenue with particular reference to the dossier as per the execution report, which resulted in violation of the fundamental right guaranteed to the detenue under Article 22 (5) of the Constitution which he had the right to make an effective representation against the order of detention.
35. I am also fortified by the judgment passed by this Court in case titled "Irshad Ahmad Dar v. State and Ors." decided on 21.11.2013, reported as 2014 (1) JKJ 687 [HC], the court in para (7) observed as under :
"7. Article 22(3)(b) of the Constitution of India which carves out an exception to Article 21 of the Constitution of India guaranteeing right to liberty, authorizes the concerned authorities to pass orders in the nature of preventive detention but while passing such orders, authority concerned has to be alive to the mandate of Article 21 protecting personal liberty of a person. Such power is required to be exercised in a manner, which does not have the trappings of depriving a person of the liberty guaranteed by the Constitution of India. An exceptional case has to be carved out justifying preventive order. Procedural safeguards have to be observed. A detenue can claim prejudice, if procedural safeguards are not adhered to. He can claim that his liberty had been curtailed de hors the law. Law laid down by Hon'ble Apex Court in "Rekha v. State of Tamil Nadu and anr. "reported in (2011) 5 SCC 244 fortifies this view."26 WP (Crl) No. 202/2021
CONCLUSION :
36. Thus, in the light of what has been stated hereinabove coupled with the settled legal position, impugned Order No. No. 05-DMG-PSA-
2021 dated 21.10.2021 passed by respondent No.2 i.e. District Magistrate, Ganderbal is hereby quashed. The detenue, namely, Naseer Ahmad Dar S/o Late Gh. Mohd. Dar R/o Dar Mohalla Bunderkund, District Ganderbal is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
37. The present petition is disposed of, accordingly along with IA(s), if any.
38. Registry is directed to return the detention record of the case to the learned Deputy Advocate General appearing on behalf of the respondents against proper receipt.
(WASIM SADIQ NARGAL) JUDGE Srinagar :
13.04.2023 Pawan Chopra Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No .