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2005 DIGILAW 89 (JK)

Ab. Rashid Jogger v. State Of J. &K.

2005-03-29

MANSOOR AHMAD MIR

body2005
1. By the medium of this petition, the detention order bearing No. DMP/PSA/PA/12 dated 19.07.2004 passed by District Magistrate Pulwama, whereby the detenu, namely, Abdul Rashid Jogger stands detained in Kathua Central Jail, has been challenged. The challenge has been thrown on the following grounds; - 2. That the detenu was already in custody, so there was no need to detain the detenu in terms of the detention order under Public Safety Act and no compelling reasons have been set out in the order of detention; undue delay has crept in while executing the order of detention; the grounds of detention and material relied upon have not been furnished to the detenu and script of the same has not been made available to the detenu in Urdu and Gojri languages. The respondents have filed counter affidavit. It is profitable to reproduce paras-B and D of the said counter affidavit herein; - B. That the activities of the detenu were prejudicial to the security of the State, as such was detained under the Public Safety Act, 1978 vide Order No. DMA/PSA/12 dated 19.07.2004. D. That under sub Section 4 of section 8 of Public Safety Act, 1978, the respondents have approved the detention order of the detenu on 23.07.2004 well within the stipulated period as prescribed by the Public Safety Act. Consequently the detention warrants were executed and the detenu was taken in preventive custody on 29.07.2004. The contents of detention order/warrant were reported to have been read over and explained to the detenu in Urdu and Kashmiri languages which he fully understood and in turn the detenu has put his thumb impression on the execution warrant. Thereafter, the entire record of the detenu was referred to the advisory Board constituted under Section 14 of J&K Public Safety Act, 1978. The Board after examining the record also heard the detenu in person and approved the action taken by the respondents and advised to keep the detenu in detention under the provisions of Public Safety Act, 1978.� Heard. Perused record. Considered. 3. The executing officer i.e. Ghulam Mohi-ud-din, ASI on back of the detention order has reported that the contents of the grounds of detention have been read over to the detenu in Kashmiri/Urdu language on 27th July, 2004. The original of the same has neither been filed with the counter affidavit nor is available on the record. Perused record. Considered. 3. The executing officer i.e. Ghulam Mohi-ud-din, ASI on back of the detention order has reported that the contents of the grounds of detention have been read over to the detenu in Kashmiri/Urdu language on 27th July, 2004. The original of the same has neither been filed with the counter affidavit nor is available on the record. But a Photostat copy of the said document is available on the record. Even the respondents have not chosen to file affidavit of the executing officer as to whether the grounds of detention have been explained in Urdu or in Kashmiri language. If it has been explained in Kashmiri language, the detenu is Gojar thus it does not mean compliance. It is not clear in which language, it has been explained. Mention has been made in para-D of the counter affidavit that the contents of the detention order were reported to have been read over and explained. What does words reported to have been� mean? Can it be held that it is compliance in terms of provisions of Jammu & Kashmir Public Safety Act? In Sophia Ghulam Mohammad Bham vs. State of Maharashtra and Ors. (AIR 1999 SC 3051), the Apex Court reiterated and reads 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 detenu to make a representation can be made and the order of detention can he assailed only when all the grounds on which lie 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¦ ¦ ¦� 4. Viewed thus it can be safely held that the detention order is not legally sustainable on this ground alone. Coming to the second ground. 5. The detaining authority has derived satisfaction in terms of the dossier, FIR and alleged admission/disclosure. The record as well as the counter affidavit nowhere points to the fact that the copies of the disclosure statement/admission, FIR were communicated to the detenu. In Mangalbaie Moti Lalaram Patel Vs. State of Maharashtra and Ors. Coming to the second ground. 5. The detaining authority has derived satisfaction in terms of the dossier, FIR and alleged admission/disclosure. The record as well as the counter affidavit nowhere points to the fact that the copies of the disclosure statement/admission, FIR were communicated to the detenu. In Mangalbaie Moti Lalaram Patel Vs. State of Maharashtra and Ors. (AIR 1981 SC 510) while focusing on the procedural safeguards and constitutional imperative in the matter of preventive detention, observed: - ... ... This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The Constitutional imperative indicated in Article 22(5) are two fold: (1) the detaining authority must as soon as may he, that is, as soon as practicable, after the detention communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what it means the right of making an effective representation�. Where certain documents are relied upon in the grounds of detention, the grounds would be incomplete without such documents. The detenue, therefore, has the right to he furnished with the grounds of detention alongwith the documents relied upon.� In Karmaruniess Vs. union of India (AIR 1991 SC 1640) the Apex Court has held as under: - ...... It is not sufficient to say that the detenue were not supplied the copies of 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 documents, however, irrelevant it may be for the concerned detenus, merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. Demand of any or every documents, however, irrelevant it may be for the concerned detenus, 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 detenne must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slight or in significant it may be in the present case, except stating that the documents were not supplied before the meeting of 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.� Thus on this count also the detention order merits to be quashed. 6. It is not mentioned in the detention order that the detenu will be released on bail and there are compelling reasons that the detenu may indulge in any subversive activities. This means that the detaining authority has not applied mind. The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under; - The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody, has been engaging the attention of this court since it first came up for consideration before a Constitution Bench in Rameshwar Shah v/s District Magistrate, Burdwan, (1964) 4 SCR 921. To a schew proximity we refrain from detaining all those cases except that of Dharmandra Suganchand Chelawat v/s Union of India (AIR 1990 SC 1196) wherein a three judge Bench, after considering all the earlier relevant decisions including Rameshwar Shah (Supra) answered the question in the following words: - The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that; (i) that the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression ˜compelling reasons™ in the context of making an order for detention of a person already in custody implied that there must be a cogent material before the detaining authority on the basis of which it must be satisfied that (a) the detenue is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenue was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified�. In another case Amrit Lal and others v/s Union of India reported in (2001) 1 SCC 341 their Lordships of the Supreme Court observed; - 4. In Agustin decision this court also placed strong reliance on an earlier but oft-cited decision of this court in Binod Singh v/s District Magistrate Dhanabad wherein it was held that if a person is in custody and there is no imminent possibility of his being released there from, the power of detention should not ordinarily be exercised. This court held that there must be cogent materials before the officer passing the detention order that the detenue is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. This court held that there must be cogent materials before the officer passing the detention order that the detenue is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the officer concerned in the matter under reference ought to be noticed and the same reads as below: - ˜Even though prosecution under the Narcotic Drug and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal I am satisfied that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 5. It is this reasoning which the Learned Advocate contended that the High Court should have held to be completely erroneous in the matter of being the basis of an order of detention. 6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in the reasoning available is the ˜likelihood of his moving application for bail™, which is different from likelihood to be released on bail. This reasoning, in our view, is not sufficient compliance with the requirements as laid down.� While applying the test to the instant case, there must be material before the detaining authority on the basis of which satisfaction can be derived that detenu was likely to be released on bail in near future. Such material is neither on the file nor with the record made available by the Additional Advocate General. Viewed thus the detention order is quashed and the State is commanded to release the detenu forth with provided he is not required in any other case.