Jammu & Kashmir High Court - Srinagar Bench
Mohammad Syed Malik vs State Of J&K; And Others on 5 September, 2017
Bench: Mohammad Yaqoob Mir, M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPAHC No. 108/2017
Date of Order: 05.09.2017
Mohammad Syed Malik
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For appellant(s): Mr M. A. Qayoom, Advocate
For respondent(s): Mr Asif Maqbool, GA.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
(Per Hanjura-J)
1. By the medium of this LPA, the appellant has assailed the order dated 21 st of
June, 2017 of the writ Court, passed in HCP No. 09/2017 on the premise that
the writ Court has not adverted to the grounds taken by the appellant in the writ
petition. It has dismissed the writ petition, primarily, on the ground that if the
detention order is issued on more than one ground which are independent of
each other, the detention order will survive, even if one of the grounds is found
to be unfounded or legally unsustainable. The respondents had neither pleaded
so in their objections filed in the writ petition nor had they projected it before
the Court. It is further pleaded in the appeal that it is a settled position of law,
that in the Habeas Corpus petition, the procedural safeguards are the only
safeguards available to the detenue which he can highlight in his petition while
challenging the order of detention. The appellant has proceeded to state that the
respondent no.2 did not inform the detune that he has a right to make a
LPAHC No. 108/2017 Page 1 of 14
representation against the order of detention before him also which cuts at the
very root of the case.
2. It has further been pleaded in the appeal, that the writ Court, while dismissing
the writ petition, has observed that the perusal of the record would reveal that
the grounds of detention were read over and explained to the detenue in the
language that he understood. However, the fact remains that neither the grounds
of detention were explained to the detenue nor was any material provided to
him, so that he could make an effective representation against the order of
detention, rendering the order of detention liable to be set aside. The learned
writ Court has not considered these grounds and has proceeded to pass the
impugned judgment in an illegal and improper manner.
3. It is also pleaded that the learned writ Court has not examined as to whether a
person can be detained under the PSA if he is already involved in substantive
offences. In the end it has been urged that the appeal be allowed and the
impugned judgment dated 21st of June,2017 passed by the learned writ Court be
set aside.
4. Heard/considered and perused the record.
5. Before adverting to the merits of the appeal, it will be profitable to quote the
relevant excerpts of the order of the writ Court that have a bearing on the
questions/issues raised in the writ petition. These are as under:-
"....................
Before adverting to the above provisions, it be
mentioned here that once an authority mentioned in
sub section (2) of section 8 of the Act exercises the
power conferred on it thereunder and fulfils the
procedural safeguards of furnishing grounds of
detention and the relevant relied upon material to the
detenue, such authority has limited role vis-à-vis the
detention of the concerned, as the purpose of
conferment of the power under section 8 stands
accomplished. This becomes clear from section 19 of
the Act as well. Thereafter, all other safeguards
enshrined in article 22(5) of the Constitution of India
LPAHC No. 108/2017 Page 2 of 14
and requirements prescribed by the relevant law have
to be fulfilled.
The perusal of the record would further reveal
that the grounds of detention have been explained to
the detenue in the language he understands and the
copy has been handed over to him along with the
records and the detenue has been informed about his
right of making representation against his detention.
This would mean that the requirement of section 25 of
the Act has been fulfilled.
.................
As per the settled position of law if a detention is issued on more than one ground independent of each other, the detention will survive even if one of the grounds is found to be unfound or legally unsustainable. In the present case the detention order is issued on more than one ground independent of each other, therefore, the detention order does not get vitiated even if one of the grounds taken in support of the petition turns affirmative. My this view is fortified by a law laid down by the Supreme Court in case titled Gautam Jain versus Union of India & another, reported as 2017(1) Jammu Kashmir Law Times, vol. 1(SC)P.1.
.......................
Since the Court has already held that the detention survives even if one of the grounds taken in support of the petition remains unexplained or proves to be bad in law, therefore, the detention order can be maintained in absence of any explanation on this count by the respondents."
6. Learned counsel for the appellant has made a multi pronged attack on the judgment delivered by the writ Court. The main plank of his argument is that the detenue has been informed that he can make a representation to the government against the order of his detention bearing No.: 193/DMB/PSA/2016 dated 14.12.2016 passed by the District Magistrate, Baramulla, in exercise of LPAHC No. 108/2017 Page 3 of 14 the powers conferred on him under Section 8 (1)(a)(i) of JKPSA. The District Magistrate respondent No.2, has not , however, informed the detenue that he can make a representation to the detaining authority and this infraction renders the order of detention liable to be set aside.
7. To substantiate his argument, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir in the order dated 09th June, 2017 passed in the case of Tariq Ahmad Dar Versus State of J&K and others (LPA No. 43/2017), the relevant extracts of which are detailed below:-
"6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the LPAHC No. 108/2017 Page 4 of 14 Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.
7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order.
8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.
9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for LPAHC No. 108/2017 Page 5 of 14 more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8.
(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -
(i) the earlier order of detention or its continuance is not legal on account of any technical defect or
(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."
10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the LPAHC No. 108/2017 Page 6 of 14 Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-
" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.
Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
11. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.
13. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before LPAHC No. 108/2017 Page 7 of 14 the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non- communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.
14. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non- communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act.
Ultimately the Supreme Court held as under:-
"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so LPAHC No. 108/2017 Page 8 of 14 long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."
15.From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.
16.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.
17.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-
communication of the fact that the detenu could make a representation to the Detaining Authority. The detention LPAHC No. 108/2017 Page 9 of 14 order having become invalid, the detenu is liable to be released forthwith insofar as his detention order is concerned.
18.The appeal is allowed. The impugned order is set aside."
8. The judgment cited above is lucid, luminous and clear and applying its ratio to the facts of the instant case what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, in as much as, he has not been informed that he has a right to make a representation to the detaining authority, till such time that the detention order is not approved by the government. This permitted no option as it is a right guaranteed under Article 22 (5) of the Constitution of India and Section 13 of the Act 1978. It is incapable of being taken away, and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention.
9. Looking at the instant case from another perspective, case bearing FIR Nos.
186/2016 for offences under Section 171 RPC, 3/ 4 Exp Substance Act, 161-A IWT Act stand registered against the detenue at Police Station Sopore, which it is said in the grounds of detention is under investigation. This First Information Report formed the baseline of the order of the detention of the detenue passed at an earlier point of time which was quashed by this High Court in HCP No:
123/2016 by an order dated 11.11.2016. What material has been gathered subsequently to justify his detention by another order dated 14.12.2016 of the District Magistrate is an unraveled mystery. The edifice of the earlier order of detention was constructed on the basis of the FIR numbered above. It had an important bearing on the case and had to be provided to the detenue along with the material gathered during the investigation of the case in order to enable him to make an effective representation. This is a breach of law and has the effect of rendering the detention order liable to be set aside.
10. Another argument of the appellant is that in the grounds of detention the respondent No.2 has stated that the detenue is a hard core OGW of HM Outfit LPAHC No. 108/2017 Page 10 of 14 and it is obvious that if he will be allowed to move freely, he will again start working for the banned outfit and will create a hurdle for the security agencies to maintain security in the area. The order of the detention of the detenue has been passed on 14.12.2016 by the Respondent No.2, and it had to remain in force for a period of 6 months. It was subsequently confirmed by the government vide No.Home/PB-V/2848 of 2016 dated 24.12.2016. The detenue was directed to be detained for a further period of six months vide Government Order No. Home/PB-V/1235/2017 dated 19-06-2017. This extension was made on the recommendations of the IGP, CID. The extension order made on the recommendations of the IGP, CID portrays a complete lack of the application of mind. Section (8) of the JKPSA, running under the Head "Detention Of Certain Persons" provides that the Government may, if satisfied, with respect to any person that with a view to prevent him from acting in any manner prejudicial to the security of the State or maintenance of public order etc., make an order that such person be detained by the Divisional Commissioner or by the District Magistrate. It also provides that when an order is made by the Divisional Commissioner or by the District Magistrate, he shall, forthwith, report the fact to the Government together with the grounds on which the order of detention has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after it is so made unless, in the meantime, it has been approved by the Government.
11. What gets revealed from the above is that the order of detention made either by the Divisional Commissioner or by the District Magistrate, has to be confirmed by the Government within a period of 12 days, as otherwise it will lose its sanctity. Section 18 of the JKPSA provides that the maximum period of detention for which any person may be detained in pursuance of a detention order, which has been confirmed by the Advisory Board u/s 17 of the JKPSA, shall be 03 months in the first instance, which may be extended to 12 months LPAHC No. 108/2017 Page 11 of 14 from the date of the detention of a person acting in any manner prejudicial to the maintenance of public order and 06 months in the first instance, which may be extended up to 02 years from the date of detention in case of a person acting in any manner prejudicial to the security of the State. Sub section 02 of Section 18 of JKPSA provides that nothing contained in this section shall affect the powers of the Government to revoke or modify the detention at any earlier time or to extend the period of detention.
12. A conjoint reading of the two sections quoted above would mean that the Divisional Commissioner or the District Magistrate can pass an order, thereby detaining a person for a period of 12 days, within which period, it has to be confirmed by the Government. So, it is the Government, that regulates the period of detention of the detenue after the afflux of this time. However, in the instant case, the detention of the detenue after the period of three months has been extended twice on the mere asking of the IGP, CID which is a violation of law. Extension can be directed by the Government after deriving satisfaction on the count that it is warranted and justified to be done under the facts and circumstances of a given case. To reach at this conclusion reasons have to be spelt out. It is not an unbridled power. It has to stand the test of satisfaction. The English law is that every imprisonment is prima facie unlawful and it is for the person directing imprisonment to justify the action. The Apex Court of the Country has stretched this canon of law further by laying it down in AIR 1980 Supreme Court, that in a petition for the grant of writ of Habeas Corpus, it is enough for the detenue to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful.
13. In the Execution Report, attached to the record and prepared by ASI Abdul Majid, it is stated that the contents of detention warrant and the grounds of detention were read over to the detenue in English and these were explained to him in Urdu/Kashmiri languages, which he understood, and in token thereof his LPAHC No. 108/2017 Page 12 of 14 signature has been attained on it. In order to satisfy the Court that this exercise was carried by the Officer named above, in the given form it was incumbent on his part to place an affidavit on record. This has not been done. Doing so would have repelled and dispelled all doubts engulfing the case. Resort can in this behalf be had from the law laid down in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, it has been held as under :
"1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act."
14. Viewed in the context of what has been said and done above the order of the extension of the detention have been made without deriving satisfaction to the effect that it is warranted to be done. The material on which the detaining authority has relied upon in carving out a case for the detention of the detenue is nonexistent as it has not been stated anywhere as to whether the fact situation had undergone any change from the date of quashing the earlier order of the detention of the detenue. The Officer, who it is said read over and explained the order and the grounds of detention to the detenue has not placed his affidavit on LPAHC No. 108/2017 Page 13 of 14 record to substantiate so. This could have attached a semblance of fairness to the execution report and to cap it all the detenue has been deprived of a valuable right of making the representation to the detaining authority. These features of the case have not been considered by the writ Court and as a consequence to it the impugned judgment dated 21st June, 2017 of the learned Single Judge, passed in HC (P) 09/2017 cannot survive. It is, accordingly set aside, and the impugned order of detention bearing No. 193/DMB/PSA/2016 dated 14.12.2016, passed by respondent No.2- District Magistrate, Baramulla, is quashed with a further direction to the respondent to release the person of Shri Mohammad Syed Malik S/o Mohammad Ashraf Malik R/o Darpora Bomai, District Baramulla, Kashmir, from the preventive custody forthwith, if not required in any other case.
15. The record produced by Mr. Asif Maqbool, GA, is returned to him in the open Court.
(M. K. Hanjura) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
05.09.2017
"Manzoor"
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