Jammu & Kashmir High Court - Srinagar Bench
Zahoor Ahamd Bhat vs State Of J&K; & Ors on 9 July, 2014
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No. 43/2014
CMP No. 24/14 Date of Decision: 09.07.2014
Zahoor Ahamd Bhat v. State of J&K & anr.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey,Judge
Appearing Counsel:
For Appellant: Mr. Mir Shafaqat Hussain, adv.
For Respondents: Mr. S.A. Vakil, AAG.
1. The detenu, Zahoor Ahmad Bhat son of late Gh. Qadir Bhat resident of Mirpora Trigam, Kupawara, through his mother seeks quashment of detention order no. DMB/PSA/07 of 2014 dated 29.03.2014 purporting to have been passed by District Magistrate Budgam, with consequent prayer for release of the detenu forthwith.
2. The detenu, through his mother, challenged the aforesaid order through the medium of HCP no. 43/2014, inter alia, on the grounds that the order of detention suffers from non-application of mind;
a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;
b) that the detenu has not been provided the material forming basis of the detention order in the translated form so as to enable him, being an illiterate person, to make an effective representation against his detention;
c) that the grounds of detention have not been explained to the detenu in the language which he understands; and that the detention order has not been executed in time, which renders the detention illegal.
3. In the writ petition, it is contended that respondents have after the arrest of detenu in FIR No. 12/2013 u/s 4 of P. S Act P/s Keran passed the detention order no. 11/DMK/PSA of 2013 dated 28.10.2013 and during pendency of the writ petition, state-respondent on 27.12.2013 revoked the order of detention and thereafter passed the impugned order while the detenu in custody in FIR no. 200/2013 u/s 302, 120, 120-B RPC, 7/27 Arms Act P/S Budgam.
4. Notice was issued to respondents. They appeared through their ld counsel and sought time to file counter affidavit. Despite various opportunities respondents have failed to file counter affidavit and their right to file the same has been closed on 10.06.2014.
5. I have heard learned counsel for the petitioner as well as the learned Additional Advocate General, perused the writ records as well as the original detention record produced before me and given my thoughtful consideration to the matter.
6. Ld counsel for the petitioner has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance as because the petitioner is already in custody in FIR no. 200/2013 and has not applied for bail and there were no eminent possibilities of his release on bail. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention in bad in law. Ld counsel for the petitioner has in order to strengthening his contention referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr.
7. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. In the event such grounds of detention and materials are not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to one such judgment of the Supreme Court herein.
In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier judgments in Khudiram Das v State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531; Shalini Soni v. Union of India, 1980) 4 SCC 544; Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427; Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC 405, in paragraph 10 of the judgment, has held as under:
"Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in 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".
8. In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).
9. In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.
10. In Lallubhai Jogibhai Patel case (supra), the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu, but the Apex Court held that, that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court in that case observed as under:
"'Communicate' is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'grounds' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed."
11. Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the detenu was not supplied the materials relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of grounds of detention. No other material / documents, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu. Further, the grounds shown to have been served on and supplied to the detenu are in English language. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, he having been prevented from making an effective and purposeful representation against the order of detention.
12. Accordingly, the detention order no. DMB/PSA/07 of 2014 dated 29.03.2014 is quashed and detenu Zahoor Ahmad Bhat @ Abid Kashmiri S/o Late Gh. Qadir Bhat R/o Trehgam is directed to be released from custody forthwith. The matter stands accordingly disposed of. Records be returned to concerned Government Advocate.
13. For the compensation claimed on account of alleged illegal detention, petitioner is at liberty to seek appropriate remedy.
(Ali Mohammad Magrey) Judge Srinagar, 09.07.2014 Syed Ayaz Hussain, Secretary