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2002 DIGILAW 304 (JK)

Gh. Mohd. Bhat (Gh. Ahmad Bhat) v. State

2002-09-27

SYED BASHIR-UD-DIN

body2002
1. Subject Ghulam Ahmad Bhat while on way to Delhi with his mother was arrested at Srinagar Airport on 27.12.2001. While being so held, District Magistrate Srinagar Respondent No.2 detained him under Section 8 of the Jammu and Kashmir Public Safety Act, with a view to prevent him from acting in any manner prejudicial to the maintenance of the security of the State, under his order No: DMS/PSA/1902-05 dated:02.01.2002.Pursuant to the order he was taken into preventive detention on 14.01.2002. This order and consequent detention is under challenge in this petition. 2. The Learned Counsel for the petitioner submits that the detenue was not informed of his right to make effective representation and thereby his right of representation under Article 22(5) and under Section 13 of the J&K Public Safety Act is violated. The detenue was not also supplied the detention order and the grounds therefor. He was not even provided the material referred in the grounds of detention. The grounds of detention are vague and non existent and order suffers from non-application of mind. 3. The Government Advocate in reply submits that the detenue was informed of his right of representation, against detention. He was also informed that he can appear before the Board constituted under the Jammu & Kashmir Public Safety Act. He was supplied the order with grounds. As only the grounds were relied upon, therefore, no material was supplied. He appeared before the Board. He even executed the receipts, in token of receipt of the grounds as also the letter informing him of his right to make representation to the Government. The grounds are stated to be true, unambiguous and relevant. The order is stated to have been passed on due application of mind. 4. The communication DMS/PSA/1902-05 dated:02.01.2002 addressed to detenue shows that copy of grounds of detention with forwarding letter was sent to Superintendent Jail Kot-balwal Jammu for communication and delivery to the detenue against receipt. From detention file/record it is seen that the detenue has signed a memo acknowledging the receipt of the grounds of detention with letter. It further shows that the contents of the grounds of detention were read over and explained to him, which he understood. It also shows that he has been informed that he can make representation to the Government against the detention. It further shows that the contents of the grounds of detention were read over and explained to him, which he understood. It also shows that he has been informed that he can make representation to the Government against the detention. The memo is executed by the detenue and counter signed/attested by Deputy Superintendent Central Jail Kotebalwal Jammu. It is also seen that the detenue knows and understands English. He also appeared before the Advisory Board constituted under Section 14 of the Jammu & Kashmir Public Safety Act in person and was heard by the Board. 5. The detaining authority District Magistrate has sworn the counter affidavit and has stated therein that the order and grounds were served on detenue who is an educated man and knows well English. He was also informed of his right to make representation to the Government against the detention. 6. In such circumstances, the contention that the detenue was not supplied the order and grounds and that he was not informed of his right to make representation to the Government against the order, cannot be accepted. 7. In para 8 of the petition, it is stated that the detenue was not provided material, such as copy of dossier and the material referred in the grounds of detention and therefore, he could not make effective representation to the Government 8. In counter/reply, it is stated that the detention of the detenue is based on grounds of detention alone and no other material has been relied for detaining the subject. No other record has been relied thereto. From record, it is seen that the grounds are based on the dossier/report of Senior Superintendent of Police Srinagar. No other material is on record to show that the detention is based on record or material other than the grounds for detention. Even non-supply of any or every document referred in the grounds is spoken not fatal by the Apex Court in Kamarunnissa v/s Union of India reported in AIR 1991 SC 1640 as under:- ".....It is not sufficient to say that the detenue were not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenue™s right to make effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenue merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenue must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slighter insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioner point out any such prejudice." Perusal of grounds of detention reveal that the memo outlines various acts of omission and commission and activities of detenue stated to be prejudicial to the security of the state. The grounds speak of membership and activities of detenue linked to militancy and his acting as candute and serving as channel of communication to pass on the information and make available finances to the organization as received by him from 1SI and PAK High Commission office at Delhi. He is also spoken of having contacts with secessionist operating in the State and out side the State. He is stated to have motivated youths to join the militants. He is stated to be based at Delhi and visits Srinagar for the above activities. Detenue is stated to be secessionist by faith with manipulative skills motivating youth to take up the arms against the Union of India. Given the facts and circumstances of this case it is not for the writ court to evaluate the nature of the grounds and sufficiency thereof. 9. In Kanuji S. Zala v/s State of Gujarat and others, reported in (1999)4 SCC 514 Supreme Court on the law with regard to absoluteness of the satisfaction of the detaining authority had to say following:- "5. 9. In Kanuji S. Zala v/s State of Gujarat and others, reported in (1999)4 SCC 514 Supreme Court on the law with regard to absoluteness of the satisfaction of the detaining authority had to say following:- "5. What is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defined by the Act It is also well settled that whether the material was sufficient or not is not for the courts to decide by applying an objective test and it is a matter of subjective satisfaction of the detaining authority." 10. In Union of India and others v/s Arvind Shergill and Ann (AIR 2000 SC 2924) the Supreme Court observed that the satisfaction of the detaining authority cannot be objectively reviewed by the court and the same is to be left to the subjective satisfaction of the detaining authority and the court cannot substitute its view in this behalf for those taken by the detaining authority. The detaining authority has on the material before the authority arrived at the decision that the activities of the detenue are prejudicial to the maintenance of the security of the State and "great threat to the stability, territorial integrity and security of the Union of India". This court on the mere allegation of non application of mind by the concerned authority without any thing more can not review the satisfaction of the detaining authority. The court cannot substitute its view for the views taken by the detaining authority. 11. In P.L. Lakhanpaul v/s Union of India (AIR SC 1967 908X915), a five member Constitutional Bench of the Apex Court, in the context of satisfaction of the empowered authority in the context of Defense of India Rules 1962, observed:- "....So long as that decision was arrived at on material, since this court does not sit in appeal against such a decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the court had examined them it would have come to a different conclusion. It is, therefore, not possible to agree with the contention that this is a case of a malafide exercise of power or a case of non-application of mind by the authority concerned." See also Union of India and others v/ s arvind Shergill and Ann (Supra). 12. In the above view of the matter, the petition cannot succeed on merits. Dismissed. Detention file produced by Mr. R.Q. Gadda, Government Advocate is returned to him in open court. 1. Subject Ghulam Ahmad Bhat while on way to Delhi with his mother was arrested at Srinagar Airport on 27.12.2001. While being so held, District Magistrate Srinagar Respondent No.2 detained him under Section 8 of the Jammu and Kashmir Public Safety Act, with a view to prevent him from acting in any manner prejudicial to the maintenance of the security of the State, under his order No: DMS/PSA/1902-05 dated: 02.01.2002.Pursuant to the order he was taken into preventive detention on 14.01.2002. This order and consequent detention is under challenge in this petition. 2. The Learned Counsel for the petitioner submits that the detenue was not informed of his right to make effective representation and thereby his right of representation under Article 22(5) and under Section 13 of the J&K Public Safety Act is violated. The detenue was not also supplied the detention order and the grounds therefor. He was not even provided the material referred in the grounds of detention. The grounds of detention are vague and non existent and order suffers from non-application of mind. 3. The Government Advocate in reply submits that the detenue was informed of his right of representation, against detention. He was also informed that he can appear before the Board constituted under the Jammu & Kashmir Public Safety Act. He was supplied the order with grounds. As only the grounds were relied upon, therefore, no material was supplied. He appeared before the Board. He even executed the receipts, in token of receipt of the grounds as also the letter informing him of his right to make representation to the Government. The grounds are stated to be true, unambiguous and relevant. The order is stated to have been passed on due application of mind. 4. He appeared before the Board. He even executed the receipts, in token of receipt of the grounds as also the letter informing him of his right to make representation to the Government. The grounds are stated to be true, unambiguous and relevant. The order is stated to have been passed on due application of mind. 4. The communication DMS/PSA/1902-05 dated: 02.01.2002 addressed to detenue shows that copy of grounds of detention with forwarding letter was sent to Superintendent Jail Kot-balwal Jammu for communication and delivery to the detenue against receipt. From detention file/record it is seen that the detenue has signed a memo acknowledging the receipt of the grounds of detention with letter. It further shows that the contents of the grounds of detention were read over and explained to him, which he understood. It also shows that he has been informed that he can make representation to the Government against the detention. The memo is executed by the detenue and counter signed/attested by Deputy Superintendent Central Jail Kotebalwal Jammu. It is also seen that the detenue knows and understands English. He also appeared before the Advisory Board constituted under Section 14 of the Jammu & Kashmir Public Safety Act in person and was heard by the Board. 5. The detaining authority District Magistrate has sworn the counter affidavit and has stated therein that the order and grounds were served on detenue who is an educated man and knows well English. He was also informed of his right to make representation to the Government against the detention. 6. In such circumstances, the contention that the detenue was not supplied the order and grounds and that he was not informed of his right to make representation to the Government against the order, cannot be accepted. 7. In para 8 of the petition, it is stated that the detenue was not provided material, such as copy of dossier and the material referred in the grounds of detention and therefore, he could not make effective representation to the Government 8. In counter/reply, it is stated that the detention of the detenue is based on grounds of detention alone and no other material has been relied for detaining the subject. No other record has been relied thereto. From record, it is seen that the grounds are based on the dossier/report of Senior Superintendent of Police Srinagar. In counter/reply, it is stated that the detention of the detenue is based on grounds of detention alone and no other material has been relied for detaining the subject. No other record has been relied thereto. From record, it is seen that the grounds are based on the dossier/report of Senior Superintendent of Police Srinagar. No other material is on record to show that the detention is based on record or material other than the grounds for detention. Even non-supply of any or every document referred in the grounds is spoken not fatal by the Apex Court in Kamarunnissa v/s Union of India reported in AIR 1991 SC 1640 as under:- ".....It is not sufficient to say that the detenue were not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenue™s right to make effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenue merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenue must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slighter insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioner point out any such prejudice." Perusal of grounds of detention reveal that the memo outlines various acts of omission and commission and activities of detenue stated to be prejudicial to the security of the state. The grounds speak of membership and activities of detenue linked to militancy and his acting as candute and serving as channel of communication to pass on the information and make available finances to the organization as received by him from 1SI and PAK High Commission office at Delhi. He is also spoken of having contacts with secessionist operating in the State and out side the State. He is stated to have motivated youths to join the militants. He is also spoken of having contacts with secessionist operating in the State and out side the State. He is stated to have motivated youths to join the militants. He is stated to be based at Delhi and visits Srinagar for the above activities. Detenue is stated to be secessionist by faith with manipulative skills motivating youth to take up the arms against the Union of India. Given the facts and circumstances of this case it is not for the writ court to evaluate the nature of the grounds and sufficiency thereof. 9. In Kanuji S.Zala v/s State of Gujarat and others, reported in (1999)4 SCC 514 Supreme Court on the law with regard to absoluteness of the satisfaction of the detaining authority had to say following:- "5. What is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defined by the Act It is also well settled that whether the material was sufficient or not is not for the courts to decide by applying an objective test and it is a matter of subjective satisfaction of the detaining authority." 10. In Union of India and others v/s Arvind Shergill and Ann (AIR 2000 SC 2924) the Supreme Court observed that the satisfaction of the detaining authority cannot be objectively reviewed by the court and the same is to be left to the subjective satisfaction of the detaining authority and the court cannot substitute its view in this behalf for those taken by the detaining authority. The detaining authority has on the material before the authority arrived at the decision that the activities of the detenue are prejudicial to the maintenance of the security of the State and "great threat to the stability, territorial integrity and security of the Union of India". This court on the mere allegation of non application of mind by the concerned authority without any thing more can not review the satisfaction of the detaining authority. The court cannot substitute its view for the views taken by the detaining authority. 11. This court on the mere allegation of non application of mind by the concerned authority without any thing more can not review the satisfaction of the detaining authority. The court cannot substitute its view for the views taken by the detaining authority. 11. In P.L. Lakhanpaul v/s Union of India (AIR SC 1967 908X915), a five member Constitutional Bench of the Apex Court, in the context of satisfaction of the empowered authority in the context of Defense of India Rules 1962, observed:- "....So long as that decision was arrived at on material, since this court does not sit in appeal against such a decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the court had examined them it would have come to a different conclusion. It is, therefore, not possible to agree with the contention that this is a case of a malafide exercise of power or a case of non-application of mind by the authority concerned." See also Union of India and others v/ s arvind Shergill and Ann (Supra). 12. In the above view of the matter, the petition cannot succeed on merits. Dismissed. Detention file produced by Mr. R.Q. Gadda, Government Advocate is returned to him in open court.