Jammu & Kashmir High Court - Srinagar Bench
Ashiq Ahmad Malik vs State Of J&K & Anr on 8 July, 2019
Bench: Chief Justice, Rashid Ali Dar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPAHC No.01/2019
Reserved on: 07.06.2019
Pronounced on:08.07.2019
Ashiq Ahmad Malik ...Appellant(s)
Through: Mr. Wajid Haseeb, Advocate.
V/s
State of J&K & anr. ...Respondent(s)
Through: Ms. Asifa Padroo, AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR JUSTICE RASHID ALI DAR, JUDGE.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Dar 'J'
1) Legality of judgment passed on 03.01.2019 by learned Single Judge is
called in question by the appellant. Learned Writ Court has disposed of Habeas Corpus Petition presented on behalf of Ashiq Ahmad Malik (hereinafter referred to as the detenu), with the following observations:
"Accordingly, the present writ petition is disposed of by giving liberty to the petitioner to approach the Advisory Board for redressal of his grievance. Any application filed by the petitioner before the Advisory Board shall be disposed of expeditiously as question of liberty of the petitioner is involved."
2) From the perusal of record, it appears that the appellant, in the writ petition, had challenged the order of detention bearing No.DMS/PSA/09/ 2018 dated 19.06.2018, passed by District Magistrate, Srinagar, precisely, on the following grounds:
i) That the case mentioned in the grounds of detention has no nexus with the detenue and has been fabricated by the police in order to justify illegal action of detaining the detenue;LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 1 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document
ii) That the allegations made in the grounds of detention are vague, non-existence and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. The detaining authority has mentioned two FIRs in grounds of detention, however, the allegations as against the detenue are far from reality;
iii) That the allegations as reflected in the grounds of detention are vague and do not justify the passing of detention order on the basis of such allegations. The detaining authority has not given any reasonable justification to pass the detention order and has not given any details of the allegations, month/date of the occurrences nor the details of allegations in such FIRs as levelled in the grounds of detention have been given. The very basis of the satisfaction recorded by the detaining authority is vague;
iv) That the detenue was already arrested in case FIR 30/2018 and 280 2017 and in the said cases he was admitted to bail four months before the detention order was passed: however, this important fact has not been mentioned in the grounds of detention that the detenu was already admitted to bail in the aforementioned cases and on this ground the detention order suffers from non-application of mind;
v) That the order of detention has been passed on 19. 06. 2018, however, it has been executed in the month of August after a delay of two months despite the fact that he was all along available and was bound by bail bonds in the cases in concerned Police Station and otherwise also no effort has been made by the respondents to execute the detention order. The delay in execution also renders the impugned detention order bad in law;
vi) That the detaining authority has not prepared the grounds of detention by itself which is a pre-requisite for him before passing any detention order and the grounds of detention are replica of the police dossier placed before the detaining authority as per record LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 2 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document The detaining authority seems to have worked on the dictates of police authorities and has not enquired about the existence of the facts by perusing the supporting material;
vii) That the respondent No.2 has not furnished the relevant material like copy of dossier and so called connected material as per record furnished to the detaining authority by police and relied upon by the detaining authority for passing the order of detention, nor the relevant material, like copy of FIR, statement u/s 161 and 164-A Cr. P. C, seizure memos, so called disclosure memo of the cases mentioned in the grounds of detention, has been furnished to the detenu to enable mm 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 concerning alleged involvement of the detenue in the alleged activities against the said order to the competent authority. Since the right of an effective representation is a constitutional right and to enable the detenue to file such a representation, it is necessary to provide him the copies of the dossier, connecting documents and the material, in the instant case respondent No.2 has not provided any such material to the detenue, therefore, the constitutional rights guaranteed to the detenue under Article 22(5) of the Constitution of India stands infringed;
viii) That the detenue is not the English literate and understands only Urdu and Kashmiri language. The order of detention and the grounds of detention are in English language which is not known to the detenue and the detaining authority was aware of the fact as is reflected in police dossier forwarded to respondent No.2, however, the detaining authority has not supplied the translated copies of the aforementioned material in Urdu or Kashmiri language;
ix) That the detenue was not informed that he has a right to make a representation against his detention order to the detaining authority nor the respondents disclosed to him before which authority of LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 3 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document government he can make the representation, which is in total violation of the rights of the detenue as guaranteed under Article 22 of the Constitution and Section 13 of the Public Safety Act;
3) The respondents, on notice, had appeared before the learned Writ Court and filed their counter wherein they had resisted the petition by stating that:
(1) That the detenue has been inclined towards secessionist ideology and it was this ideology which drew the detenue to make contacts with the cadres of LeT outfit, who motivated the detenue to join the terrorist organization. The detenue got motivated and indulged in Illegal activities to carry out nefarious designs of terrorists and became a major 0G W working for said outfit;
(2) That in order to carry out their nefarious designs, the terrorists have aggregated the smaller group in various areas of the city who are being instigated to indulge in anti-national activities in their respective areas and when asked to do so. The detenue is an important functionary in this arrangement The detenue has been entrusted the task of facilitating the logistic support to militants and transporting their arms ammunition horn one place to another;
(3) That the grounds of detention were read over, explained and served to the detenue along with a communication No.DMS PSA/Jud/49-52/2018 dated 19 06.2018 where under he was made aware about his preventive detention and has a right to file representation against his detention order, which as per record the detenue has not chosen to file;
(4) That the material which was relied by the detaining authority, same stands furnished to the detenue besides grounds of LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 4 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document detention along with detention order was supplied to the detenue against proper receipt;
(5) That the grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds coupled with definite indications, as to the impact thereof;
which has been precisely stated in the grounds of detention. The incidents clearly substantiate the subjective satisfaction arrived at by the detaining authority;
(6) That the grounds of detention give complete account of the activities of the detenue which on the face of it are highly prejudicial for maintenance of security of the State, as such, there was no option left to the deponent but to order detention of the detenue under PSA, 1978;
(7) That there is no delay either in passing of the detention order or in its execution;
(8) That the grounds of detention sufficiently connected the detenue with the activities, which on the fact of it are highly prejudicial to the maintenance of security. of the state; (9) That the grounds taken by the petitioner are legally misconceived and factually untenable and without any merit, therefore, deserves to be rejected.
4) Heard learned counsel for the parties. 5) Learned counsel for the appellant submitted that the course adopted by
the learned Writ Court was alien to law as the representation could not be entertained beyond the parameters of the Public Safety Act, by the Advisory Board or by the detaining authority. In this regard, he referred to Section 15and 16 of the Public Safety Act.
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6) It may be proper herein to have glance of both the Sections:
15. Reference to Advisory Board:
In every case where a detention order has been made under this Act; the Government shall, within four weeks from the date of detention under the order place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 8.
16.Procedure of Advisory Board.
(I) The Advisory Board shall, after considering the material placed before it and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within eight weeks from the date of detention.
(2) Notwithstanding anything contained in sub-section (1), the Board may, if the person detained so demands, at any time before submitting its report, after affording an opportunity to the person detained and the Government or the officer, as the case may be, of being heard, determine whether the disclosure of facts, not disclosed under sub- section (2) of section 13 to the person detained, is or is not against public interest. Such finding of the Board shall be binding on the Government.
(3) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 6 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document to whether or not there is sufficient cause for the detention of the person concerned;
(4) When there is a different of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential.
7) It is also the submission of learned counsel for the appellant that having regard to the nature of the writ to be issued, it was incumbent upon learned Writ Court to examine the legality and propriety of the grounds of detention and to frame the conclusion whether the Constitutional or Statutory safeguards have been adhered to while directing detention of the detenue in terms of detention order No.DMS/PSA/09/2018 dated 19.06.2018.
8) Per contra, learned counsel for the respondents submitted that the detaining authority has properly applied its mind and it was on the basis of subjective satisfaction, the detention order was passed and so the order passed by the learned Writ Court needs to be maintained. It is also his submission that the material relied upon by the detaining authority had been furnished to the detenue. The order of detention has been passed strictly in accordance with the provisions of Public Safety Act. In support of his arguments, learned counsel for the respondents placed reliance on various LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 7 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document judgments which include judgment of the Hon'ble Supreme Court in "Hardhan Saha and Ors. Vs. State of West Bengal and Ors." reported in (1975) 3 SCC 198.
9) Considered the rival arguments.
10) At the very prelude, it is deemed appropriate to refer to the observations of their Lordships of Hon'ble Apex Court in "Smt. Icchu Devi Choraria Vs. Union of lndia & Ors." (AIR 1980 SC 1983):
"The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade."
"This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred"
11) It may also be proper herein to refer to the observations of Justice Douglas in American context with regard to sacrosance of American Constitution as:
"Faith in America is faith in her free institutions or it is nothing. The Constitution we adopted launched a daring and hold experience. Under that impact we agreed to tolerate even ideas we despise we also agreed never to prosecute merely for their ideas or beliefs"
12) The right which the detenu enjoys under Article 22(5) of the Constitution of India is of immense importance. In order to properly grasp LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 8 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document submissions of petitioner avowed in petition on hand, Article 22(5) is gainful to be reproduced hereunder:
"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."
13) In the instant case, it is apparent that the detenue had projected his grievance regard non-furnishing of documents and non-application of mind.
14) 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 detenu. Same is the plain requirement of the first safeguard in Article 22(5) of the Constitution of India.
15) The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making representation against the order of detention.
16) Thus no avoidable delay, no shortfall in the materials communicated shall stand in the way of the detenu 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 detenu:
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(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.
17) 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 detenu 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 communicate the mere grounds of detention to the detenu 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.
18) Article 22(5) 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 order of detention be provided.
19) The Constitution Bench of the Supreme Court, more than six decades ago, has interpreted Article 22(5) of the Constitution in Dr Ram Krishan LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 10 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document Bhardwaj v. The State of Delhi and others, 1953 SCR 708, observed as under:
".......Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be 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."
20) In Shalini Soni (Smt.) & Others v. Union of India and Others, (1980) 4 SCC 544, it was aptly observed that the accused must have proper opportunity of making an effective representation. The Court observed thus:
"...Communication of the grounds presupposes 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 LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 11 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document 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 facet 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 dear that "grounds" in Article 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'.
(Emphasis by us)
21) In Icchu Devi Choraria (Smt.) v. Union of India and others, (1980) 4 SCC 531, the Supreme Court dealt with in great detail significance of clause (5) of Article 22 and sub-section 3 of Section 3 of COFEPOSA Act. The court observed:
"Now it is obvious that when Clause (5) of Article 22 and Sub- section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated, in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 12 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of Clause (5) of Article 22 read with Section 3, Sub- section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to Clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of Clause (5) of Article 22 read with Section 3, Sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void."
22) The Supreme Court in Khudiram Das v. State of West Bengal and others, (1975) 2 SCC 81, observed that Article 22(5) insists that all basic facts and particulars which influenced detaining authority in arriving at requisite satisfaction leading to passing of order of detention, must be communicated to detenu. Para 13 of said judgment is reproduced hereunder:
"....... 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 LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 13 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document 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 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."
(Emphasis supplied)
23) In Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra and others, reported in (1980) 4 SCC 624, the Supreme Court observed at paragraph 16 in the following terms:
"The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned Counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds 'of detention', the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudiram's case. There is merit in this submission."
24) In S. Gurdip Singh v. Union of India and others, (1981) 1 SCC 419, The Supreme Court, while reiterating legal position, observed that failure to furnish documents or materials which formed the basis of detention order along with grounds of detention and even on demand subsequently made by detenu, would amount to failure to serve grounds of detention and, therefore, would vitiate detention order and make it void ab initio. LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 14 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document
25) In Khudiram Das supra Article 22 has been succinctly analyzed. The Supreme Court observed that detaining authority cannot whisk away a person and put him behind bar at its own sweet will. It must have grounds for doing so and those grounds must be communicated to detenu as expeditiously as possible, so that he can make effective representation against order of detention. It was further observed that Article 22 provides various safeguards calculated to protect personal liberty against arbitrary restraint without trial. These safeguards are essentially procedural in character and their efficacy depends on the care and caution and the sense of responsibility with which they are regarded by the detaining authority. These are barest minimum safeguards which must be strictly observed by an executive authority.
26) A four-Judge Bench of The Supreme Court in Golam alias Golam Mallick v. State of West Bengal, (1975) 2 SCC 4, reiterated the legal position. The Supreme Court observed as under:
"No doubt, Clause (5) of Article 22 of the Constitution and Section 8 of the Act do not, in terms, speak of 'particulars' or 'facts', but only of 'grounds' to be communicated to the detenu. But this requirement is to be read in conjunction with and subservient to the primary mandate: "and shall afford him the earliest opportunity of making a representation against the order", in the aforesaid Clause (5). Thus construed, it is clear that in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. All the basic facts and material particulars, therefore, which have influenced the detaining authority in making the order of detention, will be covered by "grounds"
within the contemplation of Article 22(5) and Section 8, and LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 15 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document are required to be communicated to the detenu unless their disclosure is considered by the authority to be against public interest."
27) In Mohd. Alam v. State of West Bengal, (1974) 4 SCC 463, the Supreme Court observed that the non-communication of material was violative of Article 22(5) of the Constitution and the Act, inasmuch as it did not intimate to detenu full grounds or material to enable him to make an effective representation.
28) In Kirit Kumar Chaman Lal Kundaliya v. Union of India and others, (1981) 2 SCC 436, it was observed that once the documents are referred to in the grounds of detention it becomes bounden duty of detaining authority to supply the same to detenu as part of grounds of detention. In the case of Ramachandra A. Kamat v. Union of India and others, (1980) 2 SCC 270, the Supreme Court clearly held that even the documents referred to in the grounds of detention have to be furnished to the detenu.
29) In Tusha Thakker (Shri) v. Union of India and others, (1980) 4 SCC 499, the Supreme Court mentioned that the detenu had a Constitutional right under Article 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition.
30) In "Ram Baochan Dubey v. State of Maharashtra and Another, (1982) 3 SCC 383, the Supreme Court reiterated the legal position and observed that mere service of the grounds of detention is not a compliance of the mandatory provisions of Article 22(5) unless the grounds are accompanied with the documents which are referred to or relied on in the grounds of LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 16 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document detention. Any lapse would render the detention order void. 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.
31) 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 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 to 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."
32) 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 detenu 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 detenu 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 detenu 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 detenu at the earliest LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 17 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document opportunity to make effective and meaningful representation against his detention.
33) It is also quite apposite to quote para 10 of the judgment of the Supreme 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 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 LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 18 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document 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."
(Emphasis by us)
34) The detention order has also been challenged on the grounds that the detaining authority has failed to apply its mind to the fact whether the preventive detention of the detenu was imperative notwithstanding the fact that he was already in custody in connection with case FIR No.30/2018 and 280/2017 registered at Police Station, Parimpora. The arrest of the detenue in the said criminal cases at the time of passing of the orders of detention has not been disputed. In the grounds of detention, it is also nowhere mentioned as to whether detenu, in connection with criminal cases shown registered against him, had been admitted to bail or that he has filed any bail application, when it is the positive assertion made in ground (iv) of the petition that the detenu was admitted to bail, which further exposes the non- application of the part of detaining authority. When detenue was already in custody, there was no requirement of passing the order of detention. No compelling reasons have been mentioned for passing the order of detention
35) Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically "no", taking into consideration the law laid down by the Hon'ble Apex Court in "Sama Aruna LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 19 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document v. State of Telangana & Anr" (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:
"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."
36) The same view has been repeated and reiterated by the Supreme Court in the judgment delivered in the case of "V. Shantha v. State of Telangana & Others" (AIR 2017 SC 2625). In this regard, Para 13 of the said judgment is relevant to be quoted as under:
"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 detenue 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 LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 20 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document 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 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 inadequately yield from the chilli seed sol 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."
37) The Supreme Court in para 27 of the judgment Rekha Vs. State of Tamil Nadu and anr", (2011) 5 SCC 244, has held as under:-
"27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed".
38) Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the Public Safety Act when he was already in the custody of the police authorities in the cases, the details whereof have been given in the grounds of detention. His custody in police for the offences referred in the grounds of detention, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that the detenue applies for bail, he may succeed in LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 21 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at the doors of higher forum. Thus there were no compelling reasons justifying the preventive detention of the appellant under the Public Safety Act. This single infraction knocks at the bottom of the contention raised by the State that the detenue can be detained preventively when he is already in custody and has not applied for bail. It cuts the very root of the state act. The State could have taken recourse to the ordinary law of the land. In view thereof, it has to be held that the order of detention dated 19.06.2018 cannot be sustained.
39) The Supreme Court in Rekha v. State of Tami Nadu (AIR 2011 SCW 2262), while making reference to law laid down in Kamleshwar Ishwar Prasad Patel v. Union of India and Others, (1995) 2 SCC 51, observed that history of liberty is 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 nature of alleged activities of detenu. The Supreme Court quoted with approval the observation made in Ratan Singh v. State of Punjab and others, 1981 (4) SCC 481, emphasising need to ensure that the Constitutional and Statutory safeguards available to a detenu were pursued in letter and spirit 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 detenu's."LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 22 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document
40) We have extracted Section 15 and 16 of Public Safety Act, which delineates role of the Advisory Board and imposes obligation on the Government to place before the said Board, within four weeks from the date of detention under the order, the grounds of detention on which the order has been made, along with the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, along with the report of such officer under sub-section (4) of Section 8 of the Act.
41) Reference of sub-section (4) of Section 8 and Section 13 of the Public Safety Act may also be needed here. Sub-section (4) of Section 8 mandates the detaining authority to forthwith report the factum of detention to the Government along with grounds on which the order has been made and no such order shall remain in force for more than twelve days after making thereof unless in the meantime it has been approved by the Government.
42) Section 13 of the Public Safety Act imposes a duty on the detaining authority to communicate the grounds, on which the order has been made, to the detenu so that he is afforded an earliest opportunity to make representation against the detention order to the Government. The timeframe in Section 13 is given not later than five days and in exceptional circumstances, for the reasons to be recorded in writing, not later than ten days from the date of detention. The Advisory Board had no vires to deal with the representation even if same is filed before it because the authority, created in terms of provisions of the Public Safety Act for considering the representation under sub-section (4) of the Section 8, is the Government and the detaining authority respectively. The detenu too, under the Statute, could LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 23 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document not submit a representation either to the detaining authority or to the Government after this period is over as the detention order has been passed on 19.06.2018 and executed on 5th of August, 2018, and so the mechanism delineated under the Act was not workable. There is no provision either in the Constitution or in the Act empowering this court to work out a formula for examining the necessity or genuineness of the preventive detention by directing the Advisory Board to consider the representation now to be filed.
43) Procedural requirements are only safeguards available to a detenu, for the reason that the Court is not expected to go behind subjective satisfaction of detaining authority. As laid down by the Supreme Court in "Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and another" (1987) 2 SCC 22, 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.
44) From the above overview of case law on the subject of preventive detention, the baseline, that emerges is that whenever preventive detention is called in question in a court of law, first and foremost task before the Court is to see whether procedural safeguards guaranteed under Article 22(5) of the Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to.
45) While testing the order of the Writ Court in terms of the above legal position, it is clear that the direction, in terms of which writ petition has been disposed of was not proper. The Advisory Board had no power to entertain the representation now. The learned Single Judge has overlooked the vital LPAHC No.01/2019 MOHAMMAD ALTAF BHAT Page 24 of 25 2019.07.09 12:09 I attest to the accuracy and integrity of this document aspect of the matter while disposed of the writ petition with liberty to make representation. Even otherwise, the Court could not shun its responsibility to examine the legality of an order in the light of the above referred facts and circumstances and the obligations imposed on it by the Constitution.
46) Viewed thus, this appeal is accepted. Judgment dated 03.01.2019 is set aside. Order of detention bearing No.DMS/PSA/09/2018 dated 19.06.2018, passed by District Magistrate, Srinagar, is quashed. As a necessary corollary, the respondents are directed to release the detenue from the preventive custody unless, of course, he is not involved or wanted in any other case.
(RASHID ALI DAR) (GITA MITAL)
JUDGE CHIEF JUSTICE
Srinagar
08.07.2019
"Bhat Altaf, PS"
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integrity of this document