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2009 DIGILAW 693 (JK)

Shahmali v. State

2009-12-30

MOHAMMAD YAQOOB MIR

body2009
1. Detenue, namely, Zahoor Ahmad Bhat, is alleged to have delivered the speech against the sovereignty and integrity of State and Government of India, so was instigating the people to fight against the established government and was also creating disharmony among the people, therefore, has been arrested on 11.2.2009 in connection with case registered against him as FIR No.09/2009 for commission of offences punishable under Section 13 U.L.A Act and 2/3 E&IMCO but was later on ordered to be released on bail by the Court of Sessions Judge, Kupwara. His being at large is alleged to be a threat to the security and sovereignty of the State, so has been detained under the provisions of J&K Public Safety Act, 1978 pursuant to detention order bearing No.02/DMK/PSA of 2009 dated 23.4.2009, same is under challenge. 2. It is contended that the order of detention is totally illegal. First it is contended that the order of detention has been passed on the basis of material such as dossier and other documents furnished to the Detaining Authority by Superintendent of Police, Kupwara but copies of the said dossier and other documents have not been provided by respondent No.2 to the detenue. 3. In opposition of this contention it is pleaded by the respondents that whatever material was required to be furnished to the detenue stand furnished to him in the form of grounds of detention which in turn would suggest that there is an admission that it is only the paper styled as grounds of detention which has been signed by the respondent No.2 - (Detaining Authority) and provided to the detenue, means that the material forming base for the grounds of detention has not been furnished to the detenue. When it is so, the petitioner has been deprived of a valuable right. 4. The question whether the grounds of detention in detail referring to all activities alleged against the detenue if furnished to him would be enough for recording satisfaction for passing the order of detention. 5. When it is so, the petitioner has been deprived of a valuable right. 4. The question whether the grounds of detention in detail referring to all activities alleged against the detenue if furnished to him would be enough for recording satisfaction for passing the order of detention. 5. Similar question has been dealt with in LPA (HC) No.180/2008 decided on 3.9.2009, wherein after placing reliance on the judgment rendered in Union of India v. Ranu Bhandari, reported in 2008 Cr.L.J 4567, it has held "The stated grounds of detention recording satisfaction bereft of the materials upon which such satisfaction had been accorded and which have been indicated in no uncertain terms in the stated grounds of detention, are no grounds of detention required to be furnished in terms of the provisions of Article 22 of the Constitution". 6. Furnishing of the material forming base for the grounds of detention is imperative for valid continuance of detention. The detenue is required to be supplied all the documents, statements and other material relied upon in the grounds of detention, otherwise safeguards provided in Clauses (5) and (6) of Article 22 will get infringed because the object of communicating such material to the detenue is to enable him to make an effective and meaningful representation against the detention. 7. Recently the similar question has been dealt with by the Honble Apex Court in the judgment captioned Thahira Haris etc, etc. v. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 2184. It shall be quite apposite to quote paras 27, 28 and 29: "27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention. 29. On proper construction of clause (5) of Article 22 read with section 3(3) of COFEPOSA Act, it is imperative for valid continuance of detention that the detenue must be supplied all documents, statements and other materials relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenue and the detenue was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution". 8. Applying the ratio of the judgment to the contention raised in the context of position of the instant case, the order of detention has been passed in violation of the guaranteed rights so has to be held bad in the eye of law. 9. The next contention raised is that in the order of detention impugned it is recorded that the detenue is detained and lodged in Kot bhalwal Jail, Jammu for a "maximum period" when the Detaining Authority had no power to fix "maximum period" as the Detaining Authority could at the most fix a period of 12 days as required in terms of sub-section 4 of Section 8 of the J&K Public Safety Act. 10. In opposition it has been contended by the learned counsel for the respondents that the period of detention is finally to be decided by the Government, so using the word "maximum period" automatically gets diluted when the State Government fixes the period of detention. 11. It is trite that the authorities concerned shall have to strictly abide by the procedure as prescribed. 11. It is trite that the authorities concerned shall have to strictly abide by the procedure as prescribed. The Detaining Authority no doubt has no power to fix the "maximum period" of detention, that is domain of the Government to do so on receipt of report of Advisory Board but to record "maximum period" may have some impact on the minds of the authorities concerned while fixing the period of detention. 12. The similar issue has been set at rest by the Honble Apex Court in the judgment captioned Makhan Singh Tarsikka v. State of Punjab, reported in AIR 1952 Supreme Court 27, wherein it has been held that "the fixing of the period of detention in the initial order itself is contrary to the scheme of the Act and cannot be supported" and it has also been held that "such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board". 13. Para 4 of the reported judgment shall be apt to be quoted herein-below: "4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (S. 9) and provides that if the Board reports that there is sufficient cause for the detention "the appropriate government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (S.11). It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the detention in order dated 30.7.1951 that the petitioner should be detained till 31.3.1952 could be ignored as mere surplusage. We cannot accept that view. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected". 14. The other contentions raised not now required to be dealt with as the aforementioned two grounds are sufficient for quashing the order of detention. 15. The petition succeeds. Order of detention bearing No.02/DMK/PSA of 2009 dated 23.4.2009 is quashed. Resultantly detenue is directed to be released forthwith provided he is not required in connection with any other case. 16. Detention record as produced shall be returned to the learned counsel for the respondents. Disposed of as above.