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2002 DIGILAW 100 (JK)

Gh. Mohd. Dar v. State

2002-04-10

SYED BASHIR-UD-DIN

body2002
1. Subject Ghulam Mohammad Dar has been arrested on 25-04-2000 in FIR 94/2000 under section 7/25 I.A. Act of Police Station Ganderbal. He was held under above punitive detention till 15-06-2000. when he was further detained under preventive custody pursuant to detention Order NO: DMS/PSA/25 dated: 23-05-2000 passed by District Magistrate Srinagar under section 8 of Jammu and Kashmir Public Safety Act, 1978. This order and consequent preventive detention was challenged in H.C. Petition No. 249/2000 before the High Court and vide judgment dated: 10-07-2001, the detention order was quashed and detenue was ordered to be released from capitivity. However, the Government without bringing it to the notice of the court in the above writ petition, revoked the above detention order of District Magistrate Srinagar dated: 23-05-2002 and passed a fresh order No. Home/PB-V/2706 of 2000 dated: 05-09-2000, ordering further detention of the detenue under section 8 of the J&K Public Safety Act. This order and the detention is under challenge in this petition on number of grounds. 2. However, the counsel confines his submissions and has taken up the following grounds alone to assail the detention: - Once the detention order was quashed for failure of the Government to produce the detenue before the Advisory Board constituted under section 14 of the J&K Public Safety Act, the order cannot be said to have been cancelled or revoked on a technical ground. The counsel further submits that even before the impugned order was passed, another order of detention in respect of the subject was passed which was also turned down by the Advisory Board for the reason that the detenue has not been produced before the Board. It is misuse of powers and unfair exercise of authority to pass successive orders, notwithstanding the court verdict and opinion of Advisory Board against detention with a view to protect incarceration of the subject under one or other pretext. The counsel further submits that the grounds and the material has not been at all supplied to detenue, therefore, subject cannot be said to have been given an opportunity to make representation against the order to the Government. 3. The counsel further submits that the grounds and the material has not been at all supplied to detenue, therefore, subject cannot be said to have been given an opportunity to make representation against the order to the Government. 3. Government Advocate in reply submits that as the earlier order had been revoked by the Government, the Government was within its powers to pass fresh order in as much as the earlier order was revoked on technical ground that the detenue could be produced before the Advisory Board within the prescribed time period. The counsel concedes that the earlier order dated: 23-05-2000 has been already quashed by the court in which respondents were duly represented by the Government Advocate and the Government Advocates/State Government was given opportunities spreading over several months to file counter or to produce record which they failed to do. But the counsel submits that as the order has been cancelled before the court pronounced judgment on 10-07-2001. therefore, the order was dead. Any finding on the legality or otherwise of the detention in question has no bearing on this case. The counsel also submits that the second order of detention was also passed in September 2000, but that order was again left un-executed as the Advisory Board did not approve the order. The impugned order passed in December 2000 is on self-same grounds as of second detention and rather are dito copy of grounds of the first order passed in May, 2000. The counsel further submits that the detenue has been provided the grounds/material on which the impugned order of December, 2000 is based. The detention record is produced by Mr. G. Mustafa, GA, which is taken on record. 4. First, adverting to question of alleged non-supply of grounds/material on which the impugned detention order dated: 09-12-2000 is based, it would be apt to note para 9 of the Habeas Corpus Petition which reads as:- "9. That the detenue has neither been served with the order of detention nor the material referred to in the grounds of detention. Non supply of the material referred to in the grounds of detention alongwith the detention grounds to the detenue has prevented him from making an effective representation against his detention. That the detenue has neither been served with the order of detention nor the material referred to in the grounds of detention. Non supply of the material referred to in the grounds of detention alongwith the detention grounds to the detenue has prevented him from making an effective representation against his detention. Consequently the detention of the detenue has been rendered void and illegal." Reply to this para is covered disjunctively by paras 7, 9 and 11 of the counter which reads as under:- "7. It is submitted that the grounds of detention is sufficient and adequate material for detaining the detenue. The grounds give a clear account of the activities of the detenue which on the face of it warranted his detention.... 9. Ground 9 is vehemently denied in view of above submissions. The material stands supplied to the detenue in the shape of grounds of detention which alone form the basis for detention of the detenue..... 11. As already submitted that FIR has not been relied for detaining the detenue. It is only grounds of detention which have been relied for the said purpose. 5. Perusal of the detention record fairly and unequivocally shows at page 40, that after passing impugned detention order on 09-12-2000, same has been forwarded to Central Jail, Srinagar for execution with foot-note, that the notice of the order be given to the detenue by reading over and explaining same to him. The endorsement shows that the Dy. Superintendent of Central Jail, Srinagar executed the order (sic) on 19-06-2000 on revocation of his previous order dated -5-09-2000. It nowhere shows that the detenue was at all provided any material or grounds. The endorsement shows that the impugned detention order was read over and explained to the detenue in the language which he understood and in token thereof his signature was obtained by the Dy. Superintendent Central Jail, Srinagar. This order as also the record no where shows that the grounds/ documents/material at all were supplied to detenue at any time. The endorsement shows that the impugned detention order was read over and explained to the detenue in the language which he understood and in token thereof his signature was obtained by the Dy. Superintendent Central Jail, Srinagar. This order as also the record no where shows that the grounds/ documents/material at all were supplied to detenue at any time. Mere assertion of the detaining authority, who admittedly did not execute the detention order, that the material and documents have been furnished to the detenue would not suffice in the facts and circumstances of this case, more so, in absence of any proof of supply of the documents/material/grounds to the detenue by the authority/officer given the charge of execution of the impugned detention order/ warrant. The burden lies on the detaining authority to satisfy the court that the detenue was supplied documents/material/grounds, the basis of the detention order, if its action has to be in conformance with mandatory provision of the J&K Public Safety Act and in accord with constitutional safeguards embodied in Article 22 (5). (See .. Mohiuddin Vs. District Magistrate, Beed & ors, (AIR 1987 SC 1979). 6. The observation of the Apex Court in Sophia Gulam Mohd Bham Vs. State of Maharshtra and others (AIR 1999 SC 3051), while dealing with the detention in the case under Conversation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), which with all force applied to our case. need to be taken note of as under:- ".... 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 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 Naseer Ahmad Sheikh Vs. Additional Chief Secretary Home and Anr. Division Bench of this Court (1999 SLJ 241) 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. Additional Chief Secretary Home and Anr. Division Bench of this Court (1999 SLJ 241) 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. No where is it pleaded, muchless shows, 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." 7. In the facts and circumstances, petitioner cannot be said to have been communicated the grounds of detention within the meaning of Article 22 (5) and Section 13 of the J&K Public Safety Act. In the circumstances, the detenue cannot be said to have been provided an opportunity in order to make representation against the detention as guaranteed by Article 22 (5) of the Constitution, besides under the J&K Public Safety Act. Consequently, the detention is bad on this count. 8. The question as to what is the effect on detention in question of the impugned order dated: 09-12-2000 in the face of revocation of the first detention order dated: 23-05-2000 and passing and keeping on record second detention order dated: 05-09-2000. Admittedly, the detenue was taken in prevention detention under Order No: DMS/PSA/ 25 dated: 23-05-2000 of District Magistrate Srinagar (hereafter first order). This order under challenge in HC. 249/2000, has been quashed by the High Court on 10-07-2001. The detaining authority/District Magistrate, Srinagar as also the Government were represented by Govt. Advocates M/S R.A. Khan and R. Fida, althrough. Despite taking opportunities spreading over about 10 months, neither counter was filed nor record was produced nor the court was informed that the detention order stands revoked. Then the subject was not released pursuant to the court orders the detenue filed the present writ petition challenging the fresh order dated: 09-12-2000 which had been passed by then (hereafter 3rd order). The stand of the State Government is that the first order suffered from technical defect, therefore, the impugned order was passed to continue with the preventive detention of the subject. 9. The stand of the State Government is that the first order suffered from technical defect, therefore, the impugned order was passed to continue with the preventive detention of the subject. 9. Perusal of the detention record shows, that the first order was revoked after the Advisory Board found that the detenue was not produced and could not be produced before it within the statutory time period as prescribed by law, rendering the detention unlawful under section 16 of the J&K Public Safety Act and Article 22 (4) of the Constitution. This opinion was given on August 8, 2000. The Government rushed to pass a fresh detention order on 05-09-2000 (Order No: Home/PB-V/2706 of 2000 found at page 20 of the Detention file). Thereafter the case was again processed and submitted before the Advisory Board. However, the Advisor) Board on 19-10-2000 (page 29) directed the State Government and the detaining authority to produce detenue before it on 30-10-2000 for hearing. The detenue was produced before Advisory Board on this date and the Board while taking objection and expressing its disapproval of the act of the Home Department, observed that the detenue has not been produced before it within stipulated time period, therefore, it cannot give opinion and has no power to given opinion in this case. With this observation Board returned file to the Home Department. It appears that the Home Department left the matter. It came with yet another fresh order (No. Home/PB-V/3694 of 2000 dated: 09-12-2000) to continue with the detention of the subject. This impugned order (hereafter 3rd order) is currently in force. 10. From record, there is nothing to show that the 2nd order was ever revoked or cancelled. The opinion of Advisory Board turning down the detention in question and opining that the detenue has not been produced before it would amount to failure to afford an opportunity to the detenue, to be heard by the Board and obviously violates section 16 of the J&K Public Safety Act. The Advisory Board had declined to approve the action of the Government. The effect of the orders of the Advisory Board within the meaning of Section 17 of the J&K Public Safety Act is that the Government is bound to revoke the detention order and cause the person to be released forthwith. The Government has no where indicated what it has done with respect to 2nd order. The effect of the orders of the Advisory Board within the meaning of Section 17 of the J&K Public Safety Act is that the Government is bound to revoke the detention order and cause the person to be released forthwith. The Government has no where indicated what it has done with respect to 2nd order. Keeping the 2nd order as it is despite the above opinion of the Advisory Board and keeping in view its effect on the detention, warranting forthwith release of the detenue under operation of the statutory provision, the Government action in passing the 3rd detention order (impugned) cannot be said to be in any case to have been passed after finding the earlier order(s) to suffer from technical defects. This case would not fall within the conspectus of Section 19 of the J&K Public Safety Act. 11. Added to this, the selective silence on the part of the respondents and withholding the full information from the court in the earlier H.C. Petition, fairly indicate that the concerned officials act of passing 3rd impugned order is not bonafide, concealing and withholding information from the court of passing the 2nd detention order and during subsistance of this order passing of the 3rd impugned order without reckoning with he consequence and effect on the detention, is share abuse of powers on the part of concerned official(s) of the Home Department. 12. In the whole fact-situation and totality of circumstances, it would be reasonable and fair to conclude that in this case an attempt has been made to interfere with the course of justice and lo fiddle with the liberty of a citizcn by depriving him freedom which he otherwise had earned under law. The violation of fundamental right to life and liberty is writ large on record. The impugned detention order is thoroughly vitiated by grave infirmity. There is clear breach of constitutional guarantee embodied under Article 22 of the Constitution. 13. In result, the petition is allowed and writ of Habeas Corpus quashing the detention order(s) made against the subject is issued. The detenue Ghulam Mohammad Dar S/O Ghulam Nabi Dar R/O Sehpora Ganderbal Srinagar be released from custody and set at liberty forthwith, unless required in any other offence, case or matter. Communicate this order to concerned authority having physical custody of the above dctenue. Copy (free of cost) to the detenue/pe-titioner.