Jammu & Kashmir High Court - Srinagar Bench
Mubashir Ishrat vs State Of J&K And Ors on 28 August, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No. 99/2019
Reserved on: 23.07.2019
Pronounced on: 28.08.2019
Mubashir Ishrat
...Petitioner(s)
Through: Mr. Saqib Tufail, Advocate.
V/s
State of J&K and Ors.
...Respondent(s)
Through: Mr. Mir Suhail, AAG.
Coram: HON'BLE MR. JUSTICE RASHID ALI DAR, JUDGE
JUDGMENT
1. Respondent No.2 namely District Magistrate, Pulwama, in exercise of powers conferred on him under Section 8 of the J&K Public Safety Act, 1978, has passed the detention order No. 18/DMP/PSA/19 dated 15.03.2019 (for short impugned order), in terms whereof the detenue namely Mubashir Ishrat has been detained. The said detention order having been challenged through the medium of instant petition being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13 of J&K Public Safety Act, 1978.
2. It is being pleaded in the petition that the detenue was arrested on 05.02.2019 by security forces without any justification and was placed in illegal confinement. It is being contended that the allegations/grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective 2 representation against these allegations. 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 in order to justify its illegal action of detaining the detenue. It is being further pleaded that the detaining authority has mentioned the FIRs of the year 2018 having no nexus to the present public order situation and the allegations levelled against the detenue are far from the reality. It is further stated that the detenue was already in custody and the said fact has not been mentioned in the detention order and there was no occasion for the respondents to pass the impugned order when the detenue was to face trial in a criminal case, which shows non-application of mind on the part of the detaining authority. In addition, it is stated that the detaining authority has not prepared the grounds of detention by itself while as same is replica of the police dossier. Also it is being pleaded that respondent No.2 has not furnished the material and other connected documents, relied upon by said respondent, to the detenue to enable him to make an effective representation. Detenue has also not been informed that within what time-frame he can make representation against his detention, which clearly shows violation of the right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.
3. Respondents in their counter affidavit have stated 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 3 stated in the grounds of detention. Further it is contended 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 but to order detention of the detenue under Public Safety Act.
4. The main plea of learned counsel for the petitioner is that when the detenue was already in custody, there was no need to direct his preventive detention. Involvement of the detenue in the criminal cases, at the time of passing of the order of detention, has not been disputed. Another argument raised by learned counsel for the detenue is regarding delay between the alleged offending acts and the order of detention. In this regard, learned counsel has relied on the judgment of Hon'ble Apex Court in Rajinder Arora V. Union of India, 2006(4) SCC 796. Their lordships have referred to the judgment of T.D.Abdul Rahman V. State of Kerala & ors. (AIR 1990 SC 225) in the said case, wherein it has been observed that 'However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.'
5. Learned counsel for the detenue has also placed reliance on the judgment of Allahabad High Court in Jitendra Vs. District 4 Magistrate (2004 CriLJ 2967). Pertinent observations in the said judgment relied on are:-
"...There is another reason as to why in our judgment the impugned detention order would be vitiated. Since the detenue's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government."
6. In rebuttal, learned AAG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.
7. Considered the rival arguments.
8. Perusal of the record reveals that the detenue having been furnished only three leaves of the documents pursuant to the order impugned in terms of which he was taken into custody. He has not been provided copy of the communication of the sponsoring agency referred to in the impugned order or copy of the dossier which is stated to have been received from the said agency and also copies of FIRs and the statement of witnesses, if any recorded under Section 161/164-A of Cr.PC, on which the detaining authority has stemmed its subjective satisfaction. The affidavit of 5 SI Mohd. Merak Shah, who is shown to have furnished the copies of documents and is also said to have read over and explained the grounds of detention to the detenue, has not been placed on record. In case the detaining authority intends to rely on the stand, as is reflected in the records, that the copies of the documents were furnished to the detenue through SI Mohd. Meerak Shah, then it was mandatory upon the said authority to place on record the affidavit of the said person. In this regard it may be apt to quote the relevant observation of their lordships in State Legal Aid Committee, J&K Vs. State of J&K & others (AIR 2005 SC 1270):-
"Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to 6 comply with the requirements of Section 13 of the Act."
9. 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:-
"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."
10. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue. If the detenue is not supplied the material on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention.
11. Since the detenue was in the custody of the police, as put-forth in the petition and not denied in counter affidavit, at the time of passing of the detention order, therefore, the question that arises for consideration is whether an order of detention could be passed on the face of such an eventuality. The answer has to be in negative. The law on the subject has been laid down by the Hon'ble Apex Court in Sama Aruna V. State of Telangana & Anr. (AIR 2017 SC 2662). Para 24 of the judgment reads as :- 7
"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 2002-2003. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and Ors., this Court observed as follows:
"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."
12. It is also a fact that time frame within which representation was required to be filed has not been conveyed to the detenue. This too has to be treated a breach of right of the detenue under Section 13 of PSA and Article 22 of the Constitution of India. Judgment of Allahabad High Court in Jitendra Vs. District Magistrate (2004 CriLJ 2967) is relied on in this regard.
13. On the touchstone of the law laid down above, the detenue in the present case 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 above referred case, therefore, in view of the facts of the case and the law laid down by 8 the Hon'ble Apex Court as quoted hereinabove, the order of detention, impugned, does not sustain on the aforesaid grounds. Other grounds projected in the petition are not required to be dealt with.
14. In the afore-stated backdrop, this petition is allowed. Order of detention No. 18/DMP/PSA/19 dated 15.03.2019 passed by District Magistrate, Pulwama, impugned, is, as such, quashed. The detenue namely Mubashir Ishrat S/o Dr. Hakim Ishrat Jeelani R/o Pinglena Tehsil & District Pulwama, be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
15. Detention record, as produced, be returned to learned AAG.
(RASHID ALI DAR) JUDGE Srinagar 28.08.2019 Muzammil. Q Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No MUZAMIL QADIR 2019.08.29 10:22 I attest to the accuracy and integrity of this document