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2003 DIGILAW 363 (JK)

Mohd. Sharief v. State Of J. &K.

2003-11-24

S.K.GUPTA

body2003
The detenue, Mohd. Sharief, has been detained under section 8 of the J&K Public Safety Act, 1978 vide order dated 26/05/2003 passed by the District Magistrate Udhampur. Government vide its order dated 18/07/2003 approved his detention for a period of 24 months. The grounds or detention were served upon the detenue. The detenue is said to be an upper ground worker of Hizabul Mujahidin Organisation. He used to harbour local and foreign militants in his house at village Dhaka and Neeram, Tehsil Mahore. The detenue also organized a number of attacks on security forces and minority community in the village and the adjoining areas of Tehsil Mahore. He is also stated to be the informer of the militants and providing them the information about the movement of the security forces and their deployment in the area. The detenue thus, facilitated the militants activities, created terror in the area and caused harassment to the Hindu community and public at large. It is further alleged that on 14/08/2001, he hatched a conspiracy alongwith foreign militants to eliminate the minority community, divided themselves into two groups, one of which moved to the house of Faqir Chand and other towards Partap Singh, attacked and killed their family members, and thereafter planted I.E.D. with the dead bodies with the intention to kill all those persons, who would come there to remove the dead bodies with the explosion of the I.E.D. The detenue, therefore, is a hard core militant, provided information about the location and deployment of the security forces and after the incident, arranged the safe passage for the militants. The detenue was further stated to be an accused in the case under F.I.R. No. 122/2001 under sections 302, 307, 452, 429, 120-B, RPC, 7/27 Arms Act, registered with the Police Station Mahore and on conclusion of the investigation offences having been established against the accused and his other associates, were sent up for trial and charge-sheeted by theCourt. That the statements of the inhabitants of the village Dhaka & Neeram, Tehsil Mahore further disclosed that the foreign militants and associates have been the regular visitors to the detenue and latter assisted, aided and actively participated with them in carrying out the subversive activities in the area. That the statements of the inhabitants of the village Dhaka & Neeram, Tehsil Mahore further disclosed that the foreign militants and associates have been the regular visitors to the detenue and latter assisted, aided and actively participated with them in carrying out the subversive activities in the area. The detenue also threatened the Village Defence Committee members particularly of Hindu Community, of dire consequences in case they continued to stay in the area, and forced the minority community to migrate with a purpose to usurp their land and property. The presence of the detenue in the area surcharged the atmosphere and let loose a wave of terror amongst the inhabitants. The detenue is stated to have complete knowledge about the topography of the mountainous area and various routes, and all the sources of defence forces felt insecure and threatened in carrying out their operations effectively by his presence in the said area. 2. On the basis of the aforesaid grounds/allegations against the detenue, the detaining authority considered his presence in the area as highly prejudicial to the security of the State and passed an order of his detention for preventive custody in the Central Jail, Kot Bhalwal Jammu, so as to obviate his participation in further subversive activities in future. 3. The order of detention has been challenged by the detenue through his next friend namely Nazir Ahmed, son of Kamal Din, resident of Tehsil Mahore, on variety of gounds viz., (1) That the order of detention has been passed by respondent No. 2 without application of mind to the material provided to him by the Sponsoring Authority and the facts and circumstances of the case; (2) That the material available before the Detainig Authority was insufficient and inadequate to record his subjective satisfaction to the effect that remaining at large of the detenue is neither in the interest of security of the State nor maintenance of the law and order in the State. To support this contention, it is further stated that the detaining authority did not mention in the grounds of detention that the detenue has been acquitted by the Special Designated Court in the case under F. I. R.No. 122/2001. It was the relevant material for respondent No. 2 to consider before reaching a satisfaction and passing order of detention of the detenue for preventive custody. It was the relevant material for respondent No. 2 to consider before reaching a satisfaction and passing order of detention of the detenue for preventive custody. That the detention order, therefore, has been passed without application of mind and in a mechanical manner; and (3) That the detention order has been passed on vague allegations as the grounds of detention do not disclose the specific details with regard to the anti national activities of the detenue endangering the security of the State. The grounds specified are without basis and vague, and, thus, insufficient for recording subjective satisfaction or the detaining authority to pass such an order against the detenue. It is also stated that the detenue remained in custody till 20/05/2003, when he was released, and there are no anti national activities attributable to the accused during the period from 20/05/2003 to 26/05/2003, which made the District Magistrate to pass a detention order. That it was incubment upon the detaining authority to furnish all the documents relied upon to the detenue, so as to enable him to make an effective representation against the detention order. In the absence of specific details of the allegations indicated in the grounds of detention and without providing him the material relied upon by the detaining authority, the detenue was unable to make a repesentation to the State Advisory Board constituted under section 14 of the P.S. Act, 1978 and, as such, the order of detention is bad in law. That the detenue, being an illiterate person, understanding only Urdu, was made to put his thumb impression on certain documents, without explaining and communicating the nature of the allegations and the grounds of detention in the language known and understood by the detenue and is, thus, violative of statutory procedure prescribed under section 13 of the P. S. Act, 1978 as the grounds of detention supplied to him were in English language, which he did not understand. That the case of the detenue has neither been referred to the State Advisory Board nor the opinion of the State Advisory Board has been sought and, as such, the order of detention is vitiated. 4. In repudiating the above contention, respondents have filed the reply and contended that the order of detention has been passed on the basis of grounds of detention explicitly delineated with detailed history of the activities of the detenue. 4. In repudiating the above contention, respondents have filed the reply and contended that the order of detention has been passed on the basis of grounds of detention explicitly delineated with detailed history of the activities of the detenue. It is further stated that the detenue was communicated the grounds of detention, the basis of the order of detention. The detenue was informed of his right to make a representation to the Government envisaged under section 13 of the P.S. Act, 1978, So was also communicated to Ali Mohd. Gujjar, father of the detenue, on 26-05-2003. The grounds of detention were explained to the detenue in Urdu and Kashmiri languages and signatures obtained on the receipt of grounds of detention on 29/05/2003. Order of approval by the Government for the detention of the detenue in preventive custody dated 18/07/2003 is for a period of 24 months. The State Advisory Board also examined the record and heard the detenue, and considered the material placed before it in pursuance of sections 15 & 16 of the P.S. Act and reported that, in its opinion, sufficient cause for detention for the detenue in preventive custody has been shown, as his remaining at large could prove dangerous and detrimental to the security of the State, under section 17 or the P.S. Act. It is further stated that the detenue is in fact, not an illiterate though he claims to be so because he has appended his signatures in Urdu on the receipt. It is also denied that the detenue being a hardcore militant, no witness came forward to give evidence against him. Order of detention was passed by the detaining authority after recording the subjective satisfaction from the material placed before it by the Sponsoring Authority. It was also denied that the detenue could speak and understand Gojri language only. 5. According to the respondents, there has been no violation of the procedural safeguard in the order of detention passed by the detaining authority against the detenue, as such, the same is legally valid. I have heard Mr. S. K. Shukla, learned counsel appearing for the petitioner, as well as Mr. K. S. Johal, Addl. AG, appearing for respondents and perused the record produced by the respondents pertaining to the detention of the detenue, meticulously. I have heard Mr. S. K. Shukla, learned counsel appearing for the petitioner, as well as Mr. K. S. Johal, Addl. AG, appearing for respondents and perused the record produced by the respondents pertaining to the detention of the detenue, meticulously. It may be pointed out at the threshold that the preventive detention is not a punitive act and it is not an alternative to criminal trial under the law. Its purpose is to prevent a person from indulging in activities, such as, anti national and anti social, which endanger the security of the State or are deterimental to the maintenance of law and order, as provided under the Preventive Detention Law. Preventive Detention Law must be strictly followed substantively as well as procedurally. The detenue has two rights under article 22(5) of the Constitution of India, viz.(i) to be informed, as soon as may be, of the grounds on which the order of detention is passed, that is, the grounds which led to the subjective satisfaction of the detaining authority and (it) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered, may obtain relief to him. The inclusion of an irrelevant and non existant ground among other relevant grounds is an infringement of the first of the rights and the inclusion of obscure and vague ground among other clear and definite grounds is an infringement of the second of the rights. There is, however, an invasion on the Constitutional right of the detenue entitling him to approach the Court for relief in either case. 8. Mr. Shukla, learned counsel appearing for the petitioner, at the outset, submitted that non disclosure of the material fact of acquittal of the detenue in the case under F.I.R.No. 122/2001 mentioned in the grounds of detention and withholding of this fact from the detaining authority by the sponsoring authority, vitiates the subjective satisfaction of the detaining authority and the detention order issued is rendered invalid. He further submitted that when the detaining authority passed the detention order, the material fact, namely, the acquittal of the detenue in the case, shown in the grounds of detention had not been brought to the notice of the detaining authority and, on the the other hand, it was withheld and the detaining authority was given to understand that the trial of the case was still pending The non placing of this vital fact, resulted into the non-application of mind of the detaining authority to the said fact, vitiated the requisite subjective satisfaction and the detention order passed becomes illegal as a consequence thereof. It is further contended by Mr. Shukla that the material and vital fact with regard to the acquittal of the detenue in the aforesaid case of Police Station Mahore, as shown in the grounds of detention, which fact would have influenced the detaining authority one way or the other on the question whether or not the material and vital fact has been placed before the detaining authority and this placing and consequently the non-consideration of the said material likely to influence the minds of the detaining authority, vitiates the subjective satisfaction and invalidates the detention order. His further submission is that the other material, on which the detaining authority has drawn a subjective satisfaction is otherwise vague, deficient and lacking in details with regard to the activities of the detenue, his association with militants outfit groups, without disclosing names or the associates, amounts to an infringment of constitutional safeguards provided under article 22(5) of the Constitution of India. A persual of the grounds of detention further reveals that neither the details of incident nor that of activities of the detenue have been specifically mentioned. To support his contention, Mr. Shukla has drawn my attention to paras 4 & 5 of the petition which pertain to the arrest of the detenue alongwith others in a case under F. I. R. No. 122/2001 of Police Station Mahore. Consequently, challan was presented before the Designated Court, constituted under J&K Public Safety Act, which ultimately led to the acquittal of the detenue. Paras 4 & 5 of the petition are reproduced below: - "4. Consequently, challan was presented before the Designated Court, constituted under J&K Public Safety Act, which ultimately led to the acquittal of the detenue. Paras 4 & 5 of the petition are reproduced below: - "4. That in the year 2001 some of the militants operational in the area killed certain persons as a result FIR came to be registered i.e. FIR No: 122 of 2001 Police Station Mahore for commission of various offences. It is pertinent to mention here that the aforesaid offence took place on 14th August, 2001 and the militants who committed the offence were never caught by the police and the police in order to have the face saving, involved the poor locals of the area including the detenue in the said case and detenue alongwith others came to be arrested in August 2001. 5. That after the arrest of the detenue alongwith five other locals of the area, a challan was presented in the Court of Special Designated Court under PS Act i.e. Sessions Judge, Jammu, On 8th Nov., 2001. Subsequently the challan was transferred from the Court of Sessions Judge to the learned 3rd Additional Sessions Judge, Jammu. The prosecution led its evidence in the case and ultimately it led to the acquittal of the detenue herein" Reply in respect of the aforesaid averments of the petition in counter affidavit filed by respondent No. 2, reads as under :- "4. Contents of Para 4 are not correctly stated. It is not denied that FIR No: 122/2002, was registered at the police station Mahore. It is the petitioner, one of the accused person who was caught for the commission of the offence in the afore stated FIR. It is denied that the local persons have been picked up and detained for no rhyme or reason as alleged. 5. Contents of para 5 are not denied. Petitioner is a dreaded militant. No prosecution witness came forward to give statement against the accused. Petitioner is a threat to the security of the State, hence order of detention was passed by the answering respondent by his subjective satisfaction." 9. Respondent No. 2 in his counter affidavit did not deny the fact of acquittal of the detenue in the case under F.I.R.No. 122/2001 and stated that no prosecution witness came forward to give statement against the accused. Respondent No. 2 in his counter affidavit did not deny the fact of acquittal of the detenue in the case under F.I.R.No. 122/2001 and stated that no prosecution witness came forward to give statement against the accused. This clearly indicates that non-disclosure of the material fact of acquittal of the detenue in the aforesaid case in the dossier by the Sponsoring Authority and its non-consideration by the detaining authority in the grounds of detention, which if placed on record and considered by the detaining authority, would have influenced its mind in the formation of subjective satisfaction whether or not to issue a detention order in respect of detention of the detenue in preventive custody. 10. On going through the judgment of the Designated Court, acquitting the detenue in case under F.I.R.No. 122/2001 alongwith others, it is found that the allegations against the detenue in the said F.I.R. were that he was a worker of Hizabul Mujahidin outfit and in association with foreign militants, hatched a conspiracy to eliminate the Hindu population in order to grab their land and property. On 14/08/2001, the detenue armed with weapons alongwith others, forced their entry into the houses of Partap Singh and Faquir Chand and killed their families, and created a wave of terror in the area. Further allegation against the detenue and others was that, after killing the family members of Partap Singh and Faquir Chand, they planted grenade near the dead bodies with an intention that whosoever will touch the bodies will be killed and they were succeeded in their design. 11. The allegations against the detenue found in the case under F.I.R. No. 122/2001, in which he has been acquitted by the Designated Court vide its judgment and order dated 12/05/2003, was the only material contained in the grounds of detention, placed before the detaining authority which gave an impression that the F.I.R., in which the detenue had been arrested alongwith others and challan presented before the Court, is still pending trial and relying on this material detaining authority took a decision with regard to the subjective satisfaction and issued a detention order detaining the detenue in preventive custody. The order of detention was issued on 26-05-2003 by the detaining authority and the same was served upon the detnue on 29/05/2003, whereas the order of acquittal of the detnue in the aforesaid F.I.R. had been passed by the Designated Court on 12-05-2003. Further material, on which the detaining authority stated to have relied upon to draw a subjective satisfaction for issuing the detention order, is the statement of the witnesses of the villages Dhaka & Neeram, and adjoining area that many foreign militants alongwith associates used to come to the detenue, Mohd. Sharief Area Commander of HM, and the detenue has assisted the militants in carrying out the subversive activities in the area and provided food and shelter to them. It is pertinent to point out that non-disclosure of names of the witnesses, on whose statements the detaining authority has placed reliance to draw its subjective satisfaction, vitiates the satisfaction of the detaining authority for grounds of detention being vague and deficient. 12. Mr. Shukla submits that in the grounds of detention, the detaining authority has mentioned erroneously that the case under FIRNo. 122/2001 is pending. In fact the said case has since been decided by the Designated Court on 12/05/2003 and resulted into the acquittal of the detenue. This clearly shows that when the grounds of detention were preapared amd the detention order was issued on 26/05/2003, the detaining authority had taken the existing fact as per record with him into account that the said case is pending for trial. The detention order, according to Mr. Shukla, is liable to be quashed on this ground alone. 13. An identical matter came up for consideration before the Apex Court in "Mohd. Subrati v. State of West Bengal "1973 (3) SCC 250, and it was held as under :- "The purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof reasonable doubt being necessary in the latter. The order of detention would not be bad merely because the criminal prosecution has failed. In the present case, we would make stress not on the question of acquittal but on the question of non placing of the material and vital fact of acquittal which if had been placed, would have influenced the minds of the detaining authority one way or the other. Similar questions arose in Sk. In the present case, we would make stress not on the question of acquittal but on the question of non placing of the material and vital fact of acquittal which if had been placed, would have influenced the minds of the detaining authority one way or the other. Similar questions arose in Sk. Nizamuddin v. State of West Bengal, AIR 1974 SC 2353 in which the detention order was passed under the provisions of Maintenance of Internal Security Act. In that case the ground of detention was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the detenu therein. In respect of that incident a criminal case was filed which was ultimately dropped. It appeared on record that the history sheet of the detenue which was before the detaining authority did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from the case. In connection with this aspect this Court observed as follows (at p. 2354 of AIR):- "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether- unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate." 14. It, therefore, follows that if material or vital facts, which would influence the mind of the detaining authority on the question whether or not to make a detention order, are not placed before it and not considered by the detaining authority, it would vitiate the subjective satisfaction and make the detention order illegal. 15. It, therefore, follows that if material or vital facts, which would influence the mind of the detaining authority on the question whether or not to make a detention order, are not placed before it and not considered by the detaining authority, it would vitiate the subjective satisfaction and make the detention order illegal. 15. Again in case "Sita Ram Somani v. State of Rajasthan" AIR 1986 SC 1072, certain documents, which were claimed to have been placed before the Screening Committee in the first instance, were not placed before the detaining authority and consequently there was no occasion for the detaining authority to apply its mind to the relevant material. In the circumstances of that case, a principal point was raised before the Court that there was no application of mind by the detaining authority to those vital materials which were withheld. The Court, while answering that contention observed thus: - (at p. 1074 of AIR). "No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released." Similar view was reiterated in "Dharamdas Shamlal Agarwal v. The Police Commissioner and Anr."AIR 1989 SC 1282, held:- "Material fact of acquittal of detenue in two of the cases mentioned in table appended to grounds, not placed before detaining authority -Satisfaction is vitiated and Detention invalid." 16. From the ratio of the aforesaid judgements, it is clearly emanated that the requiste subjective satisfaction, the formation of which is a condition precedent to the passing of a detention order, will get vitiated if vital and material facts having a bearing on the issue, are weighed with the satisfaction of the detaining authority, one way or the other, and influence its mind, are either withheld or suppressed by the Sponsoring Authority or ignored and not considered by the detaining authority in issuing the detention order. 17. 17. In this case, it is indisputably gatherable from the record that the material and vital fact with regard to the acquittal of the detenue in case under F.I.R.No. 122/2001, having taken place much prior to the detention order, was not disclosed but withheld and suppressed by the sponsoring authority and not placed before and considered by the detaining authority, having a direct bearing in the formation of the decision to draw subjective satisfaction, resulted into non-application of mind of the detaining authority to the said fact and has, thus, vitiated the requisite subjective satisfaction, and rendered the order of detention invalid. 18. It was next contended by Mr. Shukla that non-supply of the material, namely, copies of the F.I.R., Dossier, Statements of the witnesses, names of the associates, a part of the material, which had influenced the detaining authority in passing the detention order, has deprived the detenue of his right of making an effective and meaningful representation to the Government as required by Article 22 (5) of the Constitution of India. 19. In para `K of the grounds of challenge of the petition, it was stated that no attempt was made by the respondents to serve the grounds of detention upon the detenue by reading over and explaining the same in the language, muchless Gojri language, which he understands. It is further stated that the grounds of detention were supplied to him in English language, which was alien to him. That the detenue further claimed to be an illiterate person and does not understand any language other than Gojri language. Whereas Supreintendent, Central Jail, Kot Bhalwal, Jammu-respondent No. 3 in para 8 of his affidavit, denied the petitioner to be an illiterate person and stated that he can speak Gojri and Hindi. It is further recited in the affidavit that the warrants and the grounds of detention were served upon the detenue on 29.05.2003. The contents of the warrants and grounds of detention were read over to the detenue in Urdu and Kashmiri languages, which he understood and thereafter the detenue appended his signatures in Urdu on the receipt of warrants and grounds of detention. 20. The contents of the warrants and grounds of detention were read over to the detenue in Urdu and Kashmiri languages, which he understood and thereafter the detenue appended his signatures in Urdu on the receipt of warrants and grounds of detention. 20. However, on going through the receipt of the grounds of detention stated to have been signed by the detenue, it nowhere reveals as to in which language grounds of detention were read over and explained to him and he was informed of his right to make a representation to the Government against the order of detention, if he so desired. Respondent No. 3, nowhere in his affidavit stated that the copies of the F.I.R., Dossier, interrogation report and Order No. PSA-2003/18 dated 26.05.2003 were provided/served to on the detenue alongwith warrants and the grounds of detention. The statements of the witnesses stated to have been recorded from village Dhaka and Neeram with regard to the association of the detenue with the foregin militants and assisting them in carrying out the subversive activities in the area, being a material fact, the mention of which is found in the grounds of detention and influenced the mind of the detaining authority for drawing a subjective satisfaction, have not been supplied to the detenue and thereby deprived him to file an effective representation to the Government and occasioned a serious prejudice to him. It is well settled that sufficient knowledge of the basic fact constituting the grounds should be imported effectively and fully to the detenue in writing and in the language he understands alongwith the material on which the detaining authority has placed reliance for issuing the detention order. The whole purpose of communicating the grounds to the detenue and providing the material is to enable him to make a purposeful and meaningful representation, as is the mandate of Article 22 (5) of the Constitution of India. In this case, as is borne out from the record and the affidavit of respondent No. 3, neither the grounds of detention have been served in the language, he understands nor imported in writing in the language which he understands. In this case, as is borne out from the record and the affidavit of respondent No. 3, neither the grounds of detention have been served in the language, he understands nor imported in writing in the language which he understands. Even the statements of the witnesses from the village, attributing the anti-social and anti-national activities to the detenue, have not been provided to the detenue nor the other material, viz., copies of the F.I.R., and the Dossier, which became the basis of drawing the subjective satisfaction by the detaining authority, and thus, makes the subjective satisfaction invalid and renders the detention order illegal. Another limb of argument advanced by Mr.Shukla is that the grounds of detention were vague and did not specify and indicate the particulars of the nature of the activities, the names of the persons with whom the detenue associated and to whom he assisted in carrying out the subversive activities. 21. The grounds of detention, when considered in totality, do not give specifically and in detail the nature of the activities, the names of the persons whose statements have been recorded with regard to the activites of the detenue and the description of the militants organization to whom he aided and assisted to carry out their subversive activites. In other words, no specific act has been attributed to the detenue of his having allegedly hatched conspiracy. All these features, facts and circumstances, do indicate that the grounds of detention are vague, general and run in omnibus term. The order of detention suffers from non-application of mind. 22. In controverting the contention of the petitioners Advocate, it was submitted by Mr.Johal, learned Addl. AG, that in view of the express provisions of section 10(A) of the J&K P.S. Act, 1978, there is no obligation on the part of detaining authority to provide the copies of the material, on which reliance has been placed to draw a subjective satisfaction by the detaining authority for issuing a detention order to detain the detenue in preventive custody. Whatever the documents are required by the detenue for making an effective representation to the Government against the detention order can be demanded by him. Whatever the documents are required by the detenue for making an effective representation to the Government against the detention order can be demanded by him. Since there was no demand from the detenue for supply of any of the documents, after the service of the detention order, it does not, in any manner, affect adversely either the decision of the detaining authority of drawing a subjective satisfaction from the material placed before it or the detention order of the detenue. I do not find any substance in the submissions made by Mr. Johal, learned Addl. AG, and thus, cannot be accepted. 23. After taking conspectus of the facts and circumstances discussed above, all the three contentions canvassed by the petitioners counsel were sound. The conclusion is, therefore, inescapable that due to the aforesaid contravention and constitutional imperatives, the continued detention of the detenue is illegal. The detention order is, accordingly, quashed. Respondent/authority having corpus of the detenue (Mohd Sharief son of Ali Mohd. Gujjar, resident of Dhaka, Tehsil Mahore, District Udhampur) is directed to set him at liberty forthwith, provided he is not required in any substantive offence or case. The order be communicated to the concerned Authorities and supply copy of the order free of cost to the detenue. Disposed of.