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2003 DIGILAW 387 (JK)

Fayaz Ahmad Bhat v. State

2003-12-09

S.K.GUPTA

body2003
Fayaz Ahmad Bhat S/o Abdul majid Bhat R/o Androosa Pampore District Pulwama was detained pursuant to an order of detention No. 6/DMP of 2002 dated 16th of February 2002, issued by the District Magistrate Pulwama under section 8 of the Jammu and Kashmir Public Safety Act, 1978, in order to prevent him from acting in a manner prejudicial to the security of the State for a period of 24 months and lodged in District Jail Kathua. Subsequently, the detention order was confirmed by the Government under its order No. Home/PB-V/957 of 2002 dated 8-05-2002. This detention order has been challenged by the detenue through Ali Mohammad Dar S/o Habib Dar R/o Sambora Pampore, his maternal uncle, on variety of grounds. 2. It is submitted that detention order is bad in law for the reason that detenue has not been supplied the grounds with the material and documents, the basis of detention order and thereby has been deprived of his right to make an effective and meaningful representation against the detention order to the Government/Competent Authority. 3. It was next averred that the detenue has moved an application for bail in FIR 93/2001 in the court of Session Judge Pulwama and was released on bail on 23-11-2001. The detention order is silent about these facts which clearly demonstrates total absence of application of mind on the part of the detaining authority in reaching a subjective satisfaction that it is necessary to take the detenue into preventive custody for maintenance of the security of the State and therefore, the detention order is void on this ground alone. It was lastly submitted by the counsel appearing for the detenue that detenue, being totally illiterate, was not in a position to understand the English language nor could he read the grounds of detention to the outcome and the failure on the part of the detaining authority to communicate the grounds of detention in the language understood by the detenue and to provide him the translated script of the material, which form the basis of the satisfaction of the detaining authority, vitiates the detention order impugned in this writ petition. 4. Despite various opportunities, no counter affidavit from the detaining authority has been filed by the respondents. However, Mr. Khan, AAG. Ld. 4. Despite various opportunities, no counter affidavit from the detaining authority has been filed by the respondents. However, Mr. Khan, AAG. Ld. Counsel appearing for the respondents, has contended that provision of Section 13 of the Jammu & Kashmir Public Safety Act as well as mandate of Article 22(5) of Constitution of India have been complied with and followed in letter and spirit. The detention record was also made available by the Mr. Wani Dy. AAG. The detention order dated 16th of February 2002 reads as under:- "Whereas, on the basis of grounds of detention placed before me, I am satisfied that with a view to prevent Shri Fayaz Ahmad Bhat S/o Abdul Majid Bhat R/o Androsa, Tehsil Pampore district Pulwama from acting in any manner which is prejudicial to the security of the State, it is necessary so to do." 5. A plain reading of the aforesaid order indicates that the detention of the detenue in preventive custody has been ordered on the basis of the grounds indicated in the detention order. The file shows that there is a dossier of Superintendent of Police Pulwama where the reference of FIR 93/2001 under section 212 RPC 7/25 Indian Arms Act registered against the detenue is made in which the detenue was arrested on 1.11.2001 and one hand grenade was recovered on the basis of disclosure. 6. In para 4(K) of the grounds in the writ petition, it is stated as under:- "That the material relied upon in the shape of FIR disclosure statement as well as the documents in the shape of seizure memo with regard to the alleged recovery have not been supplied to the detenue nor has it mentioned that where from the recovery has been made and where the disclosure statement made, as such, the detenue has been made to suffer and his right of making an effective representation has been denied. On this count also, the order of detention and the grounds of detention of the detenue deserve to be quashed and set aside." 7. In the absence of the counter by the detaining authority, this ground of challenge remains un-explained. Even the receipt of the service of the detention order, obtained from the detenue and found in the record of detention, does not disclose that the material, relied upon by the detaining authority for reaching the requisite satisfaction, was supplied to the detenue. In the absence of the counter by the detaining authority, this ground of challenge remains un-explained. Even the receipt of the service of the detention order, obtained from the detenue and found in the record of detention, does not disclose that the material, relied upon by the detaining authority for reaching the requisite satisfaction, was supplied to the detenue. The grounds of detention further disclose that the detenue is a hard core militant of Hizbul Mujahidin outfit, indulging in launching an armed struggle against the Union of India and his activities are highly prejudicial to the security of the State. Neither any such material has been supplied to the detenue nor is found in the detention record to show that there is proximate nexus between the present and the past activities of the detenue. The detenus right to make a representation includes his right to receive copies of the statements And documents which are referred to in the grounds of detention served upon him. If the detaining authority fails to supply them to the detenue within a reasonable dispatch, there would be a denial of the detenus guaranteed right to make an effective representation. It is apt to point out that this right is not dependent upon the detenus demanding the documents. 8. When an order of preventive detention is challenged, on the ground that it contravenes Articles 22(5) of the Constitution of India the question for determination by the court is not whether the petitioner will in fact be prejudicial in the matter of securing release by his representation, but whether his constitutional safeguard has been infringed. His preventive detention is serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against improper exercise of power may be jealously watched and enforced by the Court. There is no communication or document on record to show that authorities/officers of the Jail at Kathua handed over the grounds to the detenue alongwith the documents viz copy of FIR disclosure statement and the seizure memo, with regard to the alleged recovery of arms and ammunition from his possession, on the basis of which subjective satisfaction was formulated by the detaining authority to pass the detention order for preventive custody of the detenue. 9. 9. It was next contended by the counsel appearing for the detenue that the detenue though was released on bail by the District and Sessions Judge Pulwama on 22nd of November 2001 in FIR 93/2001 for offences under section 212 RPC, 7/25 Indian Arms Act, whereas detention order was passed by the District Magistrate detaining authority on 16th of February 2002. The detaining authority has based his subjective satisfaction on the FIR, registered against the accused and alleged recovery of the arms and ammunition, besides referring to his past activities. The detaining authority however, has not been made aware of fact that in the aforesaid FIR the detenue moved an application and was enlarged on bail. The detention record produced in the court does not disclose any compelling reasons which impelled the detaining authority to pass the detention order without referring to the activities of the detenue after his release on bail and till the detention order, issued in the case, impugned in this petition, to be prejudicial to the security of the State. In order to sustain such order, it must be explained by the detaining authority, that there is proximity and rational nexus between past conduct of the person and the conclusion that this detention is necessary at the time of passing the order. Detention order is silent about the fact, with regard to the release of the detenue on bail in FIR 93/2001 which amounts to total application of mind on the part of the detaining authority and thus renders the detention order void, as has been held by the Apex Court in Anant Sakharam Raut v. State of Maharashtra & Anr. AIR 1987 SC 137 reads as under :- "6. In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details. 7. We are not satisfied that this is a fit care to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground." 10. 7. We are not satisfied that this is a fit care to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground." 10. The right of supply all the material on which the grounds of detention are based emanated from the right given to the detenue to make a representation and unless the detenue is communicated the grounds with material and documents he cannot be said to have been disclosed and supplied the grounds of detention. The detention record further does not disclose that the detenue was supplied the translation of the grounds of detention and material in support thereof in script and language understandable to the detenue as is necessitated under Article 22(5) of the Constitution of India. In Powanammal v. State of T.N. (1999) 2 SCC 413 it is held as under:- "The amplitude of the safeguard embodied in Art.22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to-do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 11. What is indisputably gatherable from the above, is that non-supply of such documents would amount to denial of a right of being communicated the grounds of detention and of being afforded opportunity of making a representation against the order and thus renders his continued detention illegal. 12. In view of the facts and circumstances discussed above, the detention order is adjudged invalid and is, accordingly, quashed. The respondent/competent authority having the custody of the corpus of the detenue, shall set him at liberty forthwith provided the detenue namely Fayaz Ahmad Bhat S/o Abdul Majid Bhat R/o Androssa pampore District Pulwama, is not required in any other substantive offence. A copy of the order shall be supplied to the petitioner free of cost. The detention record has been returned to Additional Advocate General in the Court.