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2001 DIGILAW 262 (JK)

Ab. Rashid v. District Magistrate, Leh

2001-11-06

SYED BASHIR-UD-DIN

body2001
1. One Rehmat-ullah alias Tsangrupa of Turtuk, Nobra has been arrested on 05-06-1999 in criminal case registered as FIR No. 11/99 U/s 122 RPC, 3/27 LA Act, 2/3 EIMCO, 4/5 Exp. Subs. Act (at P/S Nobra). During custody in the above case District Magistrate Leh (respondent No. 1) detained said Rehmat-Ullah U/s 8 of J&K P.S. Act, 1978 on the ground that his detention is necessary with a view to prevent him from indulging in activities prejudicial to the security of the State. An order of detention thereto bearing No. 228/PSA of 1999 dated: 27-12-1999 was passed. The subject was taken in preventive detention from punitive custody on 28-12-1999. This order is under challenge in this petition. 2. Learned counsel for petitioner has pressed following grounds and made submissions thereto in support of his contention that the order of detention and consequent detention is vitiated. First that the document(s)/material referred in the grounds have not been supplied to the detenue thereby the detenue is disable to make a representation. Second that notwithstanding that the detenue was granted bail by CJM Leh on 04-08-1999 in the regular case FIR No. 11/99 of P/S Nobra, the detenue was taken in preventive custody without showing awareness about the bail order. No mention thereof is made even in grounds notwithstanding that the bail had been furnished and accepted by the court. No compelling reasons have been given to warrant detention under the provisions of J&K P.S. Act, 1978 when the detenue facing trial in the regular case, is in custody. Third that the detenue has not been supplied the order of detention and grounds there for. The detenue an illiterate not able to understand English language, has neither been explained the grounds in Ladakhi language which he understood nor supplied transcription thereof. The detenue is prejudiced on that count to make a meaningful representation. 3. Respondents have filed counter. While countering the petition allegations, continuous detention under the impugned detention order and execution of the order on 28-12-1999 is admitted. The detenue is stated to have been supplied order and grounds of detention. It is further stated that the grounds were read over and explained to the detenue in Urdu, Balti, Ladakhi which the detenue understood. The detention is stated to be based on the grounds and no other material or recovery is stated to be relied on. The detenue is stated to have been supplied order and grounds of detention. It is further stated that the grounds were read over and explained to the detenue in Urdu, Balti, Ladakhi which the detenue understood. The detention is stated to be based on the grounds and no other material or recovery is stated to be relied on. It is further stated that the detention order was passed only because there was apprehension of detenue getting bail in the regular case. Detenues being at large is a threat to the security of the State. Learned counsel has made submission in line with and in support of above counter allegations placed on record on affidavit of the detaining authority. 4. The detention record file is available with record. The record stands examined and perused. Para 4 (ix) of petition reads as: - That the grounds of detention of the detenue relied on various documents, including FIR No. 11/99. It is submitted that no copy of FIR or of any other document was served on the detenue, assuming that the grounds of detention were served on the detenue. The detenue has been prevented from making effective representation.� In reply, para 7 of the counter affidavit read as:- That the material in the shape of grounds of detention stands supplied to the detenue. It is the grounds of detention which form the basis for preventive detention of the detenue. No other material or record has been relied for this purpose even FIR which no doubt has a passing reference in the grounds, had not been relied.� 5. Perusal of the detention order and the grounds reveal that the grounds speak of detenues close association with H.M., his interactions with number of other persons named in the report, taking money for joining militancy and keeping arms and ammunition dumped, receiving training in handling of arms, ammunition and sophisticated weapons, concealing of the arms and recovery of huge cache of arms and ammunition, registration of FIR at P/S Nobra etc. Obviously all these events and facts are based on some information/report/material fed to the detaining authority, the District Magistrate Leh. Obviously all these events and facts are based on some information/report/material fed to the detaining authority, the District Magistrate Leh. The documents and material, out of which the afore-, mentioned basis and inferential facts form the basis of subjective satisfaction of the detaining authority to order detention in question, have to accompany the grounds of detention, if the compliance with mandatory provisions of Article 22(5) is to be drawn. The detention record produced shows that the subjective satisfaction and application of mind of District Magistrate to pass the impugned order is based on material/record like dossier and other connected documents produced before the detaining authority. The authoritys conclusion of likelihood of continued indulgence in activities prejudicial to the security of the State by detenue, are based on the material which is not just casual or has passing reference in the grounds of detention. 6. The contention of the learned counsel for respondents Mr. Gh. Mustafa is that the documents and material like registration of FIR and recovery of the arms and ammunition is casually referred in grounds while stating the facts in the grounds of detention. Merely because FIR is not supplied to detenue it cannot, in the totality of facts and circumstances of this case, vitiate the detention. This submission of Mr. Gh. Mustafa, is based on the decision of the Supreme Court in Mst. L.M.S. Ummu Saleema Vs. Shri I.B. Gujara & Anr.(1981 3 SCC 317). However, registration of regular case, recovery of arms and ammunition, receipt of money and other acts of Omission &-Commission referred in the grounds are based on the material/information, may be in the form of dossier. Respondents have not merely referred to factual inference but to the factual inference and the material leading to such inference. In absence of the supply of documents/material relied in the grounds of detention, the detenue cannot be said to have been offered an opportunity to make an effective and meaningful representation. 7. In Mst. L.M.S. Ummu Saleema case (supra), the Apex Court in the context of detenue not being supplied record of investigation regarding trunk telephone calls booked from a telephone number and petrol filled in Jeep of brother of the detenue in that case observed that these documents not being relied upon, the detaining authority in making the order of detention not required to supplying them to the detenue. It was in this context that the Apex Court observed; that failure to supply documents, material which are only casually or passingly referred to in the course of narration of facts in the grounds of detention, are not required to be supplied to the detenue and failure to supply these documents would not render detention illegal. 8. Obviously on plain (Sic) apprehension of the matter it is seen that the above case has no parallel with the instant case. The documents referred in the grounds of detention are not casually or passingly referred in the grounds but are very much relied to lead to factual inference, the basis of detention. 9. The connotation, scope and range of term "Communication of grounds of detention", in order to constitute compliance with Article 22 (5) as laid down by the Supreme Court in Smt. Icchu Devi Choraria Vs. Union of India and others (AIR 1980 SCI 983) is: ...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 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 (s) of Article 22 and Section 3, Sub-Section (3) of the COFEPOSA Act...� 10. In Naseer Ahmad Sheikh Vs. Ad-, ditional Chief Secretary Home and Anr, (1999 SLJ 241), a Division Bench of this court, to which 1 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 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 Bhan Vs. Nowhere is it pleaded, muchless shown, that the copy/ copies of these reports 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 Bhan Vs. State of Maharashtra and Ors. (AIR 1999 SC 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...� In Ghulam Mohd Mir Vs. State of Jammu & Kashmir and Anr. (HCP No. 93/99) decided on 30-12-1999, it is recorded:- ..In the circumstances, the detenue cannot be said to have been provided an opportunity and the means to make mean ingful and effective representation against the detention as guaranteed apart from provisions of Public Safety Act, by Article 22 of the Constitution. So long the material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is with-held from or denied to the detenue, the detenue cannot be said to be communicated the grounds with material. If so, detenue is denied opportunity to make representation.� Seen thus the detention is vitiated and cannot be sustained on this count. 11. The next contention that the impugned order is vitiated as the detaining authority has not shown awareness that the detenue was bailed out in the regular case at the time impugned detention order was passed, cannot be upheld for reasons to follow. In the context of pleading it is seen that the District Magistrate detaining authority has spoken of his awareness even in counter affidavit of pendency of regular case FIR No. 11/99 registered at P/S Nobra against the detenue. He has also stated that there is apprehension of detenue getting released on bail under punitive provisions of law. In the context of pleading it is seen that the District Magistrate detaining authority has spoken of his awareness even in counter affidavit of pendency of regular case FIR No. 11/99 registered at P/S Nobra against the detenue. He has also stated that there is apprehension of detenue getting released on bail under punitive provisions of law. These aspects in conjunction with other facts and circumstances of the case make it absolutely necessary for the detaining authority to pass the impugned detention order with a view to prevent him from acting in any manner prejudicial to the security of the State. The grounds also speak of registration of the FIR, recovery of the ammunition and arms and in this context mention of antecedent activities of detenue qua likelihood of his remaining at large to be a threat to the security of the State, cannot be said to be without basis and beyond awareness of detaining authority. 12. Notwithstanding that the detaining authority could have been more forth-coming to specifically mention that in the eventuality of detenue being released in the context of nature of antecedent activities, detenue would indulge in activities prejudiced to the security of .the State, the detention order is not vitiated on that score. The fact remain that the order of detention shows awareness of the detaining authority that the detenue had been arrested in the regular case FIR No. 11/99 on 05-06-1999 and was continuing in punitive custody, when the order of detention was passed. 13. In Dharmendra Suganchand Chelwat case (AIR 1990 SC 1196), in the context of validity of a detention order passed against a person in custody, the Apex Court observed it is necessary: That the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that detenue is already in detention.� The compelling reasons implies availability of cogent material before the detaining authority, the basis of satisfaction of the authority of likelihood of release of detenue from custody in near future coupled with the nature of antecedent activities of the detenue and the likelihood that after release, detenue may indulge in activities prejudiced to the security of the State. Seen thus in the totality of facts and circumstances, the detention cannot be said to be vitiated on this count. 14. The last contention of the learned counsel that the detenue was not communicated, detention order and grounds as pleaded in para 4 (i) & (iii) of the petition does not appear to be well founded. In counter, detaining authority has clearly and squarely pleaded that the detention order and the grounds were supplied to the detenue at the time when this order was executed on 28-12-1999. The detention order as also the grounds are averred to have been read over and explained to detenue in Urdu, Balti, Ladakhi language which he understood. However, it is stated that the receipts have been obtained from the petitioner/detenue. The detention record file contains the receipt dated: 28-12-1999 to show that the grounds were received by detenue and that the grounds were read and explained to him in the language which he fully understood and he was informed of his right of making representation against the order of detention. This receipt is signed by the detenue and SHO P/S Leh, the serving officer and is also attested by Dy. Superintendent of Police Leh Ladakh. Similarly the supply of the detention order and its execution is evidenced by the report of the SHO P/S Leh as attested by Dy. S.P. Leh, while forwarding the papers to concerned quarters, after taking detenue in preventive detention pursuant to the orders of the detaining authority. In view of the record coupled with the counter averments the contention that order and grounds were not supplied/communicated to detenue has but to be rejected. In result, in as much as, the impugned detention order is held vitiated for failure to supply the material/information/report on which grounds are based and thereby non-communication of grounds of detention within the meaning of article 22 (5) of the Constitution resulting in adversely affecting the detenue to make effective and meaningful representation against the detention order, the impugned detention order is vitiated and not sustainable under law. Respondents/Detaining Authority/Officer having physical corpus of detenue Rehmat Ullah alias Tsangrupa S/O Ghulam R/O Turtuk Farol of Nobra Leh is/are directed to release him and set him at liberty forthwith, unless detenue is required in any other offence, case, or matter. Copy of this order shall be given to petitioner free of cost. Respondents/Detaining Authority/Officer having physical corpus of detenue Rehmat Ullah alias Tsangrupa S/O Ghulam R/O Turtuk Farol of Nobra Leh is/are directed to release him and set him at liberty forthwith, unless detenue is required in any other offence, case, or matter. Copy of this order shall be given to petitioner free of cost. Communicate this order to concerned authorities. The record produced by Mr. Gh. Mustafa, G A is returned to him in open court.