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2001 DIGILAW 11 (JK)

Tariq Ahmad Batloo v. State Of J. &K.

2001-01-23

SYED BASHIR-UD-DIN

body2001
Tariq Ahmad Batloo, for whom this Habeas Corpus petition has been filed by his father Jalaluddin Batloo, has been taken in preventive custody on 13-7-2000 under the Detention order DMS / PSA /117 dated 19-11-1999 of District Magistrate, Srinagar. Initially a writ petition was filed when the said Tariq Ahmad Batloo, was free and not detained under the aforementioned impugned order, but during the pendency of writ petition he was detained and thereafter he filed an amended petition on identical grounds with the only difference that by the time the amended writ petition was allowed and taken on record the petitioner stood detained under the impugned order passed under section 8 of the Jammu and Kashmir Public Safety Act, 1978 after the District Magistrate, Srinagar came to the conclusion that the detention of the said Tariq Ahmad Batloo was necessary to prevent him from acting in any manner pre-judicial to the security of the State. In main, the following two grounds are urged to challenge the impugned order both in writ averments as also in the submissions made by the learned counsel for the petitioner. First, that the petitioner when taken in preventive custody under the impugned order, was not supplied the material, documents/statements, referred in the order as also the grounds of detention, thereby adversely affecting his right of making the representation against the detention to the Government. Second, that there has been delay in implementation of the detention order. There is fore-bearance of the State and its authorities / officers agencies to implement the order despite the petitioner being regularly available at home as also in court while being tried in FIR 96/99 of Police Station Maharaj Gunj under section 7/25 I.A. Act. The petitioner as also the prosecution and the concerned police regularly appeared in the case before the court on more than one occasion during the pendency of the case before the court, yet the authorities despite opportunities and the occasions to arrest him did not opt to arrest him, even after the petitioner got initial bail in the case. In the tell tale facts of the case, the very purpose of the detention is frustrated in so far as the proximate link between the detention order and the purpose of detention is not made out on record. In the tell tale facts of the case, the very purpose of the detention is frustrated in so far as the proximate link between the detention order and the purpose of detention is not made out on record. The action of the respondents in moving leasurely to implement the detention order after over a period of nine months speaks for itself to vitiate the order. From the record made available by the learned Government Advocate and the counter placed on record, it is revealed that record/report/dossier was withheld from detenue. Only simple, grounds of detention and the order of detention was served on the detenue. For inordinate delay in executing the detention order, reason recorded is that the detenue was not available. The delay caused is due to non availability of the detenue and the order is not vitiated on these counts. In para 9 of the writ petition, it is alleged : ...... At the time of his arrest that is, on 14-7-2000 till date, the order of detention, the ground of detention and the documents including dossier on which the detaining authority has based his satisfaction for passing the order of detention have not been provided to the detenue, nor he has been informed that he can make a representation.� In reply affidavit, in para 9, to counter the above allegations, it is stated : 9... In reply to para 9th it is submitted that the contents of the grounds of the detention have been explained and readover to the detenue in the language he fully understand. It will be proper to submit here that the detenue himself admits that he has received the grounds of detention in para 8th of this petition, hence the para is in contradiction to para 8th of the petition. On this count the petition deserves no consideration." Obviously, in reply to the allegation that the grounds of detention as also the documents including the dossier on which the detaining authority based his subjective satisfaction were not supplied to the detenue. The specific contention of detenue that he was not even informed that he can make representation against detention is also not controverted. The specific contention of detenue that he was not even informed that he can make representation against detention is also not controverted. The order of detention shows that the subjective satisfaction of the then District Magistrate, Srinagar is : ...on the basis of the record made, available to me received from S.S.P Srinagar........" Again in reply affidavit filed by the District Magistrate Srinagar, it is seen that while submitting brief facts of the case in the affidavit, it is averred : That the respondent No.2 received report in the form of dossier from Sr. Superintendent of Police Srinagar. On perusal of the said report the predecessor of answering respondent came to the conclusion which is in the form of grounds of detention which read as under: - Obviously, while applying the mind and drawing the subjective satisfaction quo prevention of the detenue from indulging in activities prejudicial to the security of the State, the detaining authority has considered material in the form of dossier/ report from the Sr. Superintendent of Police Srinagar. This report and dossier is averred even in counter affidavit not to have been supplied to the detenue. Only order of detention and the grounds given in Annexure-C to the order are stated to be supplied. The record produced also does not show that any such material/documents/ record was made available/supplied to the detenue. The grounds of detention (Annexure-C) speaks of incriminating prejudicial and subversive activities of petitioner touching the security of the State/maintenance of the public order, which activities obviously are based on report/dossier/record not supplied to the detenue. Obviously, the detenue cannot be said to have been communicated the material on which the grounds are based. Even copies thereof have not been supplied to him. In such circumstances, the detenue cannot be said to have been communicated the grounds with material. A fortiorari that the detenue is denied opportunity to make effective and meaningful opportunity within the meaning of Article 22(5) of the Constitution. In Smt. Icchu Devi Choraria v. Union of India and others (AIR 1980 SC 1983) the Honble Supreme Court has observed : ..... What is meant is that the grounds of detention in their entirety must be furnished to the detenue. In Smt. Icchu Devi Choraria v. Union of India and others (AIR 1980 SC 1983) the Honble Supreme Court has observed : ..... 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 documents statements and other material 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(S) of the COFEPOSA ACT.....� In Nasar Ahmad Sheikh v. Addl Chief Secretary Home and Am. (1999 SLJ: 241) a Division Bench of this court to which I was a party observed : ....The 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. (1999 SLJ: 241) a Division Bench of this court to which I was a party observed : ....The 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. Nowhere 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.� In Sophia Gulam Mohd Bham v. State of Maharashtra and others (AIR 1999 SC; 3051), the Apex Court in the context of a 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....� In view of the aforementioned conclusion arrived at, the detention as also the order of detention is legally vitiated and cannot be sustained. In the fact of the above view taken, the other ground urged in support of the petition qua alleged delay in implementation of the order, in the facts and circumstances of the case, is not required to be gone into and adjudicated upon, notwithstanding, much can be said whether implementation of the impugned order has been inordinately delayed or not. In result, for the aforesaid reasons, the impugned order of detention being found beyond pale of law, the detention order is quashed. Respondents/detaining authority/officer having custody of the corpus of the detenue Tariq Ahmad Batloo S/o Jalaluddin Batloo R/o Kachgari Masjid Fatehkadal, Srinagar, is directed to release him from custody and set him at liberty forthwith, provided the said detenue is not required in any case or substantive offence. Copy of this order be given to detenue free of costs. Communicate the order to the concerned.