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2000 DIGILAW 121 (JK)

Ab. Aziz Lone v. State Of J. &K.

2000-06-02

SYED BASHIR-UD-DIN

body2000
1. Detenue Abdul Aziz Lone has been detained by District Magistrate Kupwara, vide Order No: DMK/Conf/575-77 dated 21-07-1999, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detenue has been taken in preventive custody on 22-07-1999. This order of detention is under challenge in this petition. 2. The petitioner™s counsel submits that the detenue has not been supplied the material and documents referred in and relied on in the grounds of detention. He has been supplied just two leaves forming the grounds without any supporting material. In absence of the aforesaid material and documents, the source and basis of core and basic facts of the grounds and detention have not been communicated to detenue and thereby he has been disabled to make a representation against the detention to Government. Next the counsel submits that by supplying the grounds of detention in English which language detenue could not understand he has been prejudiced to make any effective representation against the detention. The representation of petitioner made against the detention has not been considered, thereby its constitutional obligation is breached by the State. 3. The counsel for the State while countering the arguments of the other side, canvasses that the detenue has been communicated the grounds in detail. He has not been prejudiced in making representation. The representation made by son of the detenue, referred to by the detenue™s counsel has not been received by the State, therefore, the question of its consideration does not arise and in fact the detenue has made no representation against the detention. There are serious charges against the detenue and that the subjective satisfaction of the detaining authority is informed of the documents and material on record and same is drawn on available information. The detenue is not only upper ground worker, but also a harbourer and carrier of the militant groups and in his capacity as Head Constable of Police force his anti-national activities are totally unacceptable and wholly prejudicial to the security of the State. He was informed of his right to make representation. Para (v) of the Petition reads as under:- That it is further submitted that the respondents have not supplied to the detenue any material referred and relied by them in the grounds of detention except two leaves forming annexure 1. He was informed of his right to make representation. Para (v) of the Petition reads as under:- That it is further submitted that the respondents have not supplied to the detenue any material referred and relied by them in the grounds of detention except two leaves forming annexure 1. It is submitted that even FIR copy and other material relied on, has not been supplied to the detenue despite requests. In absence of aforesaid material the detenue could not make representation against the detention order.� 4. In counter, detaining authority asserts that the grounds of detention were prepared and supplied to detenue, but does not answer the allegation that the material and document(s) on which the grounds of detention (as reproduced even in counter) is based, was ever supplied to detenue. The existence of material and document(s) unfolding and projecting the basic core and essential facts and circumstances of the grounds of the detention are admitted in para (b) as under.- That the respondent No. 2, District Magistrate Kupwara received a report in the form of dossier from Superintendent of Police Kupwara. After going through the dossier and the record placed before the respondent No. 2, the respondent 2nd applied his mind and came to conclusion that the activities of the detenue are highly prejudicial to the security of the State and accordingly the grounds of detention which are as under were prepared and reads as:-.� 5. Obviously, the basic facts and material relatable and encompassing detaining authorities subjective satisfaction comprises of report/dossier of S.P. Kupwara and some other record (undisclosed). Its non-communication impinges on the basic right of the detenue as enshrined under Article 22(5) and infringes the States obligation of affording effective and meaningful opportunity to detenue to make representation to the Government against the detention. Notwithstanding, the seriousness and gravity of charges as spelled out in the grounds, the court cannot act except in compliance with constitutional imperatives as indicated in Article 22(5). As pointed out by his Lordship Justice Dr. A.S. Anand (as his Lordship then was) in Jaswant Singh Vs. State and another (1982 KLJ: 337) that the court ...has a delicate task of balancing the interests of the community at large, as against the interests of an individual....� 6. As pointed out by his Lordship Justice Dr. A.S. Anand (as his Lordship then was) in Jaswant Singh Vs. State and another (1982 KLJ: 337) that the court ...has a delicate task of balancing the interests of the community at large, as against the interests of an individual....� 6. In Smt. Ichhu Devi Chorari Vs.Union of India and others (AIR 1980 SC: 1983), it is pointed out:- ...What is meant is that the grounds of detention in their entirety must be furnished to the Detenue. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenue, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenue a bare recital of the grounds of detention, but copies of the document, statements and other materials relied upon in the grounds of detention must also be furnished to the detenue within the prescribed time subject of course to cl.(6) of Art. 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA ACT...� 7. In Naser Ahmad Sheikh Vs. Addl. Chief Secretary Home and Anr (1999 SLJ: 241), a Division Bench of this Court to which I was a party it is stated:- .... That grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Now here is it pleaded, muchless shown, that the copy/copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order. ...� 8. In Sophia Gulam Mohd Bham Vs. Now here is it pleaded, muchless shown, that the copy/copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order. ...� 8. In Sophia Gulam Mohd Bham Vs. State of Maharashtra and others, (AIR 1999 SCL: 3051), the Apex Court in the context of communication of grounds� held:- ....The right to be communicated the grounds of detention flow 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 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....� 9. Obviously the dossier/report and recorded relied in the grounds of detention in terms of the counter not having been supplied to the detenue, the communication of grounds is incomplete. The constitutional right of communication of grounds includes the right to receive the above documents is infringed material infracted. For failure to supply the same, detenue would be deemed deprived of the opportunity of making an effective representation. This is a serious infirmity which goes to the roots of the detention and vitiates it. 10. The contentions that the detenue was not explained the order and grounds in the language which he understood and was not informed of his right to make a representation is baseless and not supported by any material on record. From record, it is seen that while executing the order and taking detenue in preventive custody, the detenue was served with the order, grounds of two pages and expressly informed of the right to make a representation against the detention order. The endorsement and receipt on record reveals that the same were read and explained to detenue in Urdu as well as in Kashmiri. He was also given the order of detention as also the above two leaves of grounds and in token he has given receipt and signed the same. The receipt is attested by Assistant Superintendent of Kotbulwal jail, Jammu, where the detenue is held. He was also given the order of detention as also the above two leaves of grounds and in token he has given receipt and signed the same. The receipt is attested by Assistant Superintendent of Kotbulwal jail, Jammu, where the detenue is held. It is verified and attested by Superintendent of this jail. All contentions based on non service of order, non-supply of two page grounds and alleged failure to inform detenue to make a representation are without basis and wholly devoid of any merit. The contention on this score is over ruled. 12. From record, it is seen that a copy of the representation (Annexures-2) though placed on record is not made by the detenue, but his son Altaf Ahmad Lone who has also filed this H.C. Petition. There is nothing on record to reveal that this representation has been in fact send to the addressee Chief Secretary or that in fact it was received by the addressee/Government. Merely because, some receipt is pasted on the bottom margin of this annexure, does not necessarily, in absence of anything more, show that this representation was either despatched or received by the addressee. This is all the more so, as the record produced reveals that no representation was received by the Government. Besides, the representation as provided by Article 22(5) of the Constitution and provisions of J&K Public Safety Act, is the representation of detenue and not of a third person, may be a relation of the detenue. In result, for the aforesaid reason the detention being vitiated on account of the pointed out above legal and constitutional infirmity detention order contained in Annexure-1, is quashed with direction to respondents/authority/officer having physical corpus of the detenue Abdul Aziz Lone S/o Mohd Abdullah Lone R/o Khumeriyari Kupwara, to release him and set him at liberty forthwith in case not required in any substantive offence or case, including FIR 99/99, registered at police Station Kupwara. Communicate the order to the concerned. Give copy to detenue free of cost.