Jammu & Kashmir High Court - Srinagar Bench
Saboor-Ul-Haq Malla vs Union Territory Of Jk & Anr on 18 December, 2020
Bench: Ali Mohammad Magrey, Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
Reserved on: 16th of December, 2020
Pronounced on: 18th of December, 2020
LPA No.137/2020
Saboor-ul-Haq Malla
..... Appellant(s)
Through: -
Mr G. N. Shaheen, Advocate.
V/s
Union Territory of JK & Anr.
..... Respondent(s)
Through: -
Mr M. A. Chashoo, AAG.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Vinod Chatterji Koul, Judge.
JUDGMENT
Per Magrey, J:
01. By way of the instant appeal, the appellant has assailed the judgment dated 9th of October, 2020, whereby the learned Single Judge has dismissed the Habeas Corpus Petition bearing WP(C) No.368/2019. The said petition was filed on behalf of the appellant through his father, namely, Mohammad Iqbal Malla seeking quashing of detention order No.42/DMS/PSA/2019 dated 10th of August, 2019, passed by the District Magistrate, Shopian in respect of his son Saboor-ul-Haq Malla under the provisions of the Jammu and Kashmir Public Safety Act, 1978.TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 2 of 10 LPA No.137/2020
02. We have heard the learned counsel for the parties and considered the matter. We have also gone through the record relating to the detention of the appellant, as produced by the learned Additional Advocate General.
03. Mr G. N. Shaheen, the learned counsel representing the appellant, has vehemently contended that the appellant was in police custody at the time of passing of the aforesaid detention order in connection with the FIRs registered against him and that there was no chance of his being released on bail. In this regard, our attention has been drawn to the averments contained in para 3 of the writ petition, wherein it was specifically urged that 'the detenue was arrested under many FIRs and the detenue did not apply for bail, neither bail was granted in any of the FIRs.' It is contended that in these circumstances, there was no warrant for passing the order of preventive detention.
04. In support of his submissions, learned counsel for the appellant has placed reliance on the pronouncement of the Supreme Court reported at 'AIR 2000 SC 3675: Amrit Lal & Ors. vs Union of India & Ors.', wherein the Supreme Court had held that there must be cogent material before the Officer passing the detention order that the detenu, who stands arrested, is likely to be released on bail. It was categorically held by the Supreme Court that such conclusion must be drawn from the available material on record and must not be the 'ipse dixit' of the officer passing the order of detention. It was held that 'likelihood of detenu's moving an application for bail is not a cogent material'. In para 6, the Supreme Court has observed that 'likelihood of his TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 3 of 10 LPA No.137/2020 moving an application for bail which is different from likelihood to be released on bail'. This reasoning in our view is not sufficient compliance with the requirements as laid down. Thus, merely the possibility of the detenu moving the bail application in a case in which he was in custody, but had not obtained the bail order, has been held to be insufficient reason for passing of an order of detention under preventive detention laws.
05. The next contention raised by the learned counsel for the learned counsel for the appellant is that it is a salutary and mandatory requirement under the provisions of Public Safety Act, 1978 that copies of all material documents which have been considered and relied upon by the detaining authority in forming his opinion that the detention of a person is necessary, had to be supplied to the detenu. It is pleaded that the detenue is additionally required to be informed of his right to make a representation to the detaining authority against the order of detention and also to the State Government and the Central Government.
06. So far as the contours of this requirement and sufficient compliance thereof is concerned, learned counsel for the appellant has placed reliance on a pronouncement of the Supreme Court reported at 'AIR 1999 SC 3051: Sophia Gulam Mohd. Bham, vs. State of Maharashtra', wherein the importance of this requirement stands considered. Para 12, 13, and 14 of the same read as under:
"12. 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.TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 4 of 10 LPA No.137/2020
13. 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."
14. 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 carry 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 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."
(Emphasis supplied)
07. In case titled "Tariq Ahmad Dar v. State of J&K & Ors.", LPA No. 43/2017, this Court, while dealing with an almost identical issue, held as under:
"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 TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 5 of 10 LPA No.137/2020 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 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 TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 6 of 10 LPA No.137/2020 the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public 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 earlier order of detention made against such person in any case where -
(i) the earlier order of detention or its continuance is not legal on account of any technical defect or
(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."
10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under: -
"21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws. Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 7 of 10 LPA No.137/2020 any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
11. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.
13. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non- communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.
14. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 8 of 10 LPA No.137/2020 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 long as the order of detention has not been approved by the State Government and consequently non-
communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."
15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non- communication would invalidate the order of detention.
16. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.
17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.
18. The appeal is allowed. The impugned order is set aside."
Applying the ratio of the law laid down above to the facts of the instant case, it can safely be said that the appellant has been deprived of his right to make a meaningful representation against his order of detention and TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 9 of 10 LPA No.137/2020 this, by itself, is sufficient to upset the order of detention, as it admitted of no exception.
08. So far as examination of this ground of challenge was concerned, we deemed it appropriate to call for the records of the detaining authority to ascertain what was the material furnished to the appellant upon his detention.
This record has been placed by learned counsel for the respondents before us.
A perusal of the order of detention would show that the same stands passed by the District Magistrate, Shopian who, while passing the order, has recorded his satisfaction with regard to the sufficiency of grounds 'on the basis of dossier placed before me by the SSP'. The original record placed before us contains this dossier.
09. Learned counsel for the respondents has also pointed out the receipt which was obtained from the appellant upon service of the order of detention. This refers to the service of following documents upon the detenu:
i. Order of detention: One leaf;
ii. Notice of attention: One leaf;
iii. Grounds of detention: Four leaves;
iv. Dossier of detention: Nil;
v. Other related documents: Nil.
The respondents have thus, failed to supply the dossier, based whereupon the order of detention has been passed to the detenu. The appellant has thus been prevented from making an effective 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.TAHIR MANZOOR BHAT 2020.12.18 12:09 I attest to the accuracy and integrity of this document Page 10 of 10 LPA No.137/2020
10. Viewed in the above context, we find that the impugned judgment dated 9th of October, 2020 of the learned Single Judge has failed to consider the aforesaid issues and, therefore, is contrary to the well settled principles of law on the subject. The same is not sustainable in law.
Accordingly, the judgment of the learned Single Judge dated 9th of October, 2020, passed in WP(Crl) No. 368/2019, is hereby set-aside and quashed. It is further held that the order of detention bearing No. 42/DMS/PSA/2019 dated 10th of August, 2019, issued by District Magistrate, Shopian, under Section 8 of the Jammu and Kashmir Public Safety Act 1978, is contrary to law and is hereby set-aside and quashed. The appellant is directed to be released forthwith, if not required in custody in connection with any other case(s).
11. Appeal allowed in the above terms.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
December 18th, 2020
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2020.12.18 12:09
I attest to the accuracy and
integrity of this document