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2004 DIGILAW 340 (JK)

Basharat Hussain v. State Of J. &K.

2004-12-06

S.K.GUPTA

body2004
The detenue, Basharat Hussain S/o Shri Mohammad Nazir, R/o Nagrota, Tehsil & Distt. Rajouri has been detained under section 8 of the Jammu & Kashmir Public Safety Act, 1978 vide order No. 01 of 2004 dated 27.01.2004 passed by the District Magistrate, Rajouri with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State. The detention of the petitioner was, however, confirmed by the Government vide order No. Home/PBV/693 of 2004 dated 25-3-2004 for a period of 24 months and lodged in Central Jail Kote Bhalwal, Jammu. The order of detention came to be challenged by the petitioner on variety of grounds; (i) that the grounds of detention provided to the petitioner were in English language which were hardly understandable to him and, thus, prevented him from making an effective and meaningful representation against the detention order, (ii) that the detenue, petitioner was already in custody under FIR No. 74 of 2003 for offences under sections 212/216/ 121/122/120-B RPC of Police Station, Budhal when the order of detention came to be passed, and in the absence of any explanation as to what necessitated the detaining authority to pass the detention order in such an event, would be shady order of detention being without application of mind (iii) that the petitioner, detenue was neither supplied with the copies of FIR, recovery memos, statements, if any, recorded under section 161 Cr.P.C and other incriminating material collected by the police during investigation based on which the detention order has been passed nor its translated script in the language which is understandable by the detenue, has been furnished, as is mandatorily required under article 22(5) of the Constitution of India for making a representation to the competent authority against the order of detention, thus, the order of detention renders invalid on this ground also. The respondents in their reply refuted the contention of the petitioner and submitted that the order of detention has been passed with a view to prevent the petitioner from indulging in anti-national and subversive activities, considering the same prejudicial to the security of the State. The detenue was detained in pursuance of the detention order dated 271.2004 passed by the District Magistrate, Rajouri, respondent-2. It is also stated that the grounds of detention were read over and served upon the detenue and duly explained in the language which he fully understood. The detenue was detained in pursuance of the detention order dated 271.2004 passed by the District Magistrate, Rajouri, respondent-2. It is also stated that the grounds of detention were read over and served upon the detenue and duly explained in the language which he fully understood. The grounds of detention were communicated and furnished to the detenue on 31.1.2004. His case was referred to the Advisory Board and thereafter Government confirmed the detention order for a period of 24 months, based on the opinion of the Advisory Board and other relevant material provided/furnished in this behalf. It was, however, admitted that the detenue was in custody at the time of issuing the detention order, but it was apprehended by the detaining authority that in case of his release on bail, there was likelihood of detenue again acting in any manner prejudicial to the maintenance of security of the State. I have heard the learned counsel appearing for the respective parties at length and minute examination of the facts on the file was also done. The detention record has also been made available by Mr. B.S.Slathia, AAG for the perusal of the Court. The detention order passed by the District Magistrate, Rajouri in respect of detenue with a view to prevent detenue, Basharat Hussain, from indulging in anti-national activities prejudicial to security of the State is available on the writ file which reads as; "Whereas on the basis of grounds of detention placed before me, I District Magistrate Rajouri, am satisfied that with a view to preventing Basharat Hussain son of Mohammad Nazir age 33 years R/O Nagrota Tehsil and District Rajouri from acting in any manner prejudicial to the maintenance of the security of the state, it is necessary to do so." The detention order obviously is based on the grounds of detention placed before the District Magistrate, Rajouri by the sponsoring authority. It is further gatherable from the file that the dossier of the Sr. Superintendent of Police, Rajouri as also the copy of the FIR No. 74 of 2003, seizer memos, notice for the recovery of mobile phone amongst other things and record were made available to the detaining authority. It is further gatherable from the file that the dossier of the Sr. Superintendent of Police, Rajouri as also the copy of the FIR No. 74 of 2003, seizer memos, notice for the recovery of mobile phone amongst other things and record were made available to the detaining authority. The detenue in paragraph-8 (iv) of the petition stated that he was not provided with the copies of FIR, recovery memos, statements, if any, recorded under section 161 Cr.P.C and other incriminating material collected by the police, besides investigation report. In the counter-affidavit, filed by respondent-2 it is stated as under; "...The detenue herein was detained by respondent-2 in pursuance to his Order No. 01/PSA/2004 dated 27-01-2004 as his activities were found the prejudicial to the security of the State. The said detention was duly ratified by the Government vide Govt. Order No. Home (PB-V) 693 of 2004 dated 25.3.2004. The grounds of the detention, were duly served upon the detenue before the execution of detention order. The grounds of detention were read over and duly explained to the detenue in the languages which he fully understood as is contained in the execution report other relevant material. The detenue has duly received the grounds of detention on 31-01-2004..." A conjoint reading of the above quoted paras in the backdrop of facts and circumstances of the case would fairly show that the petitioner has not been supplied with the record referred to and relied upon by the detaining authority in the grounds of detention order. The detention record further shows that at the time of executing detention order the grounds of detention and the contents of warrant are stated to have been read over to detenue in urdu/dogri language which he understands fully, as is indicated by the executing officer in its execution report which also bears the signature of detenue. The detention record further shows that receipt was also obtained from the detenue after providing him the grounds of detention which consisted of two leaves through Superintendent Jail, Jammu on 31.1.2004. The detention record further shows that receipt was also obtained from the detenue after providing him the grounds of detention which consisted of two leaves through Superintendent Jail, Jammu on 31.1.2004. There is no mention in the receipt that any other record/document relied upon in the grounds of detention, including the copy of the FIR, recovery memo, copy of the dossier and the concluding report of investigation, besides the statement of witnesses recorded under section 161 Cr.P.C attributing anti-national and subversive activities to the detenue were ever furnished/provided, and explained to him in the language which he understood. This amounts clear violation of section 13 of Jammu & Kashmir Public Safety Act. All that is stated above, only points to the infraction of provisions of section 13 of the Public Safety Act, and breach of Article 22(5) of the Constitution, inasmuch as, the detenue cannot be said to have been communicated the grounds and thereby is deprived of making an effective and meaningful representation against the detention to the Government. It is well settled that the grounds of detention attributing pre-judicial activities to the detune on the basis of the reports made available by the sponsoring authority to the detaining authority must be supplied to the detenue alongwith the copies of the relevant record so as to enable him to make meaningful representation against the detention order. 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 effective representation. Article 22(5) only obliges the authorities to communicate to the detenue the grounds on which the order of detention has been made, i.e., to indicate the kind of prejudicial activity the detenue is being suspected to be engaged in. Article 22(5) only obliges the authorities to communicate to the detenue the grounds on which the order of detention has been made, i.e., to indicate the kind of prejudicial activity the detenue is being suspected to be engaged in. But the obligation to furnish sufficient facts or particulars comes from the duty of the authorities under the second part of Art. 22(5), viz., to `afford the detenue the earliest opportunity of making a representation, for, without getting information sufficient to make a representation against the order of detention, it is not possible for the man to make the representation at all or failure to furnish the material relied upon by the detaining authority to record his subjective satisfaction for passing an order of detention amounts to denial of an opportunity of making an effective representation and is in violation of the procedures and safeguards guaranteed under Article 22(5) of the Constitution of India. The detenue need not to show that any prejudice is caused to him due to the non supply of the said material, but on the facts and circumstances renders his detention as illegal. In the above view of the matter, the order of detention on this ground alone deserves to be vitiated. It was next contended by the petitioners Advocate that the detaining authority has failed to consider that the petitioner was already in custody under FIR No. 74 of 2002 before passing the detention order, therefore, the satisfaction arrived at by him is neither reasonable nor genuine. It was further stated that the impugned order of detention has been passed without application of mind and is, therefore, invalid and un-sustainable in law. The respondents in their reply admitted that the petitioner was in custody for the commission of a criminal offence at the time of issuance of the detention order. The detention order came to be passed on 27.1.2004 and at that time admittedly the detenue was in custody under FIR No. 74 of 2002. The respondents in their reply admitted that the petitioner was in custody for the commission of a criminal offence at the time of issuance of the detention order. The detention order came to be passed on 27.1.2004 and at that time admittedly the detenue was in custody under FIR No. 74 of 2002. It is significant to point out that an order of detention presupposes that the person has or will have freedom of action to commit the mischief which is sought to be averted by preventive detention, but where the petitioner is already in jail custody for an offence of serious nature and there is no immediate prospect of his being released on bail or otherwise, the authority cannot be legitimately satisfied on the basis of his antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. The order of detention would be struck down as colourable in the absence of any explanation in the counter-affidavit as to why it was deemed necessary to make the order even while the person was in custody. As is held by the Apex Court in Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508. In other words an order of preventive detention is to be founded on a reasonable prognosis of the future behavior of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non-application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizens personal liberty which is guaranteed under the Constitution. If there is non-application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizens personal liberty which is guaranteed under the Constitution. A challenge of an order of detention though is not considered by the Court in exercise of powers of judicial review, as if on an appeal re-appreciating the materials, yet since an order of detention in prison involves the fundamental rights of a citizen, freedom of movements and pursuit of normal life and liberty, no absolute immunity can be claimed by the respondents as to the decision arrived at and it is open to the courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. In the instant case, the accused was admittedly in custody at the time of passing the detention order so is also admitted by the detaining authority in their counter filed to the petition. In the absence of clear and complete counter affidavit by the best informed person on behalf of the State giving any explanation or apparent reason as to why the making of the preventive order was deemed necessary even while he was in jail custody and had no freedom of action, the conclusion was inescapable that the impugned order had been passed mechanically and as a colourable exercise of jurisdiction as has happened in this case. To make the detention order immune against such an attack, the detaining authority in its counter-affidavit must particularize all the material circumstances on the basis of which he was satisfied as to the necessity of the preventive action despite the detenu being already in jail having no freedom of action on the date of detention order. In the present case this has not been done and, thus, the order of detention is liable to be vitiated. In the light of what has been stated and discussed above, I quash the impugned order of detention against the detenue, Basharat Hussain (age 33 yrs.) S/O Shri Mohammad Nazir, R/O Nagorta, Tehsil & District Rajouri and make the rule absolute and direct the release of the petitioner from custody of the respondents having the corpus of detenue forthwith, provided he is not required in any other case/offence or matter. Registry is directed to take follow-up action. Registry is directed to take follow-up action. Disposed of.