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2010 DIGILAW 500 (JK)

Gh. Nabi Thoker Alias Shaheen v. State

2010-09-18

MUZAFFAR HUSSAIN ATTAR

body2010
1. People of our country, besides giving rights, have assigned duties to themselves. A visibly conscious decision has been taken to live by and through parliamentary democracy. The promises, rights and duties have been formulated to shape the future of the people and consequently of the country itself. 2. The letters inscribed on the book of Constitution will strike deep roots not only in the soil of the State, but the souls of the people, when its spirit is transformed into a discernable living reality. 3. The Constitutional Courts of this country have carried forward mission and vision of Constitution makers with diehard honesty and have emphasized on the fundamental unity of the country by guaranteeing to all the citizens equality before law and equal protection of laws. 4. The Constitution has to be preserved, maintained and enforced, whatever the circumstances may be. Even in extreme adverse conditions, the provisions of Constitution have to be enthused with life. It is how the role of Constitutional Courts becomes more challenging. In the fathomless ocean of the democratic countries, the Constitutional Courts act as light houses and in the desert of adversity as torch bearers. 5. The Constitution wakes up the conscience and forms bed rock of the society which is build on moral values. It is this constitutional conscience and constitutional morality which has enabled the nation to withstand all kinds of onslaughts. The faith attained by the institutions instill strength in them to iron out all kinds of differences. Indifference and insensitiveness exhibited by any organ of the State towards its people sets in frustration, which, if not addressed at the earliest, gets transformed into alienation being pregnant with disastrous consequences. 6. People harboring different ideas and thoughts when treated fairly by the organs of the state, more particularly by the judiciary, gives soothing effect to the ruffled feeling and it is this faith attained which wins over even staunch opponents. 7. The judiciary of this country is shining in the firmament of world for, uncompromisingly, protecting rights of people as ordained by the Constitution of this country. 8. Laws are never vindictive. They treat similar people similarly and afford protection to all. However, a duty is cast upon a citizen to conduct affairs in a manner which are conducive to the mandate contained in the Constitution and other laws. 8. Laws are never vindictive. They treat similar people similarly and afford protection to all. However, a duty is cast upon a citizen to conduct affairs in a manner which are conducive to the mandate contained in the Constitution and other laws. He is to ensure that his actions or utterances do not threaten the very existence of the State of which he is a component as with the State he will also perish. 9. Ghulam Nabi Thoker (alias Shaheen) S/o Ghulam Mohi ud din Thoker R/o Khankah Midoora Teshsil Awantipora, Tral (for short the detenu) has been ordered to be detained vide order No. DMS/PSA/42/2010 dated 17th July 2010 in exercise of powers conferred by Section 8 of J&K Public Safety Act 1978 (for short Act of 1978). It is this order which is challenged in this petition on number of grounds. 10. Respondents have filed counter affidavit and rejoinder affidavit is filed. 11. Heard ld counsel for parties. Considered the matter. Number of grounds have been taken in the petition. At the hearing of the case Mr. Qureshi ld. counsel for petitioner referred to the grounds urged in the petition in a bid to seek invalidation of the detention of the detenu. 12. Mr. G. Mustafa, Id Dy.AG vehemently argued the case and submitted that all the procedural safe-guards available to the detenu have been observed faithfully by respondents. The ld. counsel further submitted that the activities of the detenu being prejudicial to the security of the state became the cause for respondent No.2 to order for detention of the detenu. 13. In the array of respondents Senior Superintendent of Police Srinagar figure as respondent No.3. Ground (a) of the petition is reproduced as under- "a) that the order of detention of the detenu is politically motivated and stands issued on the advice/ directions of respondent No. 3, who has been very recently appointed to the said post and the order of detention is sequel to the peaceful march taken out by the lawyers fraternity on 23.06.2010 in Srinagar against the atrocities committed by the men in uniform on civil population and indiscriminate/ disproportionate use of force against the civil population was objected to and besides objecting to the violation of human rights. The posting of respondent No. 3, who has remained part of Special Operation Group in the recent past was also stated to be a part of the exercise to silence voice of people raising concern about the atrocious behavior of the police against the civil population. All the events leading to excessive use of force were highlighted during the course of procession taken out by the lawyers fraternity on the said date and in order to victimize the detenu who happens to be a General Secretary of the Bar Association, the order of detention has been issued at the behest and instance of the respondent No. 3 with a view to silence the voice of the people and create fear within the members of the civil society in general and lawyers community in particular. The order of detention is, as such, tainted with malafide and is based on sheer abuse of power. In that view of the matter the order of detention of the detenu is liable to be set aside." 14. The respondents have in the counter affidavit replied the said ground as under:- "a. In response to ground (a) it is most respectfully submitted that the order of detention does not suffer from any infirmity or illegality and is strictly in accordance with the provisions of J&K Public Safety Act. The order of detention is not based on any unfounded or irrelevant grounds. It is further submitted herein that while passing the order of detention all the procedural safeguards have adhered to. Therefore, the ground of challenge being baseless deserves to be rejected." 15. Perusal of the record reveals that the detenu was ordered to be detained on 17th July 2010 and on 18th July 2010 he was communicated the grounds of detention and the material relied upon by the detaining authority as also the copy of detention order was also served on detenu. The total material comprised of 31 pages. The record reveals that detenu has acknowledged receipt of all these documents and has signed the said receipt. 16. State Advisory Board has given its opinion which has resulted in confirmation of detention of detenu. 17. The relevant and material paragraph of the report of the State Advisory Board (for short Board) is reproduced as under :- ".... The record reveals that detenu has acknowledged receipt of all these documents and has signed the said receipt. 16. State Advisory Board has given its opinion which has resulted in confirmation of detention of detenu. 17. The relevant and material paragraph of the report of the State Advisory Board (for short Board) is reproduced as under :- ".... While parting it is made mention here that District Magistrate Srinagar would have been well advised to ask SSP Srinagar to place the entire record in support of grounds of detention on the file. To make clear bare copies of FIRs without anything else have been placed on the file, which exercise if resorted to would have made things much better and clear. We hope Magistrate at the helm would not miss it for future..." 18. In order to appreciate the contentions raised at bar it becomes imperative to reproduce the Article 22 (4) & (5) of Constitution of India and Sections 15, 16 and 17 of the Act of 1978:- 22(4)No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-- (a) An Advisory Board consisting of persons who are, or have been, or the qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7): or (b) Such person is detained in accordance with the provisions of any law made by Parliament under Sub clauses (a) and (b) of clause (7). "22(5) when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 15. Reference to Advisory Board. 15. Reference to Advisory Board. In every case where a detention order has been made under this Act, the government shall, within four weeks (from the date of detention under the order) place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and incase where the order has been made by an officer, also report by such officer under sub section (4) of section 8. 16. Procedure of Advisory Board. (1) The Advisory Board shall, after considering the material placed before it and, after calling for such further information as it may deem necessary form the government or from the person called for the purpose through the government or from the person concerned and if in any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person, submit its report to the government within eight weeks from the date of detention. (2) Notwithstanding anything contained in sub section (1), the Board may, if the person detained so demands, at any time before submitting its report, after affording an opportunity to the person detained and the Government or the officer, as the case may be, of being heard, determine whether the disclosure of facts, not disclosed under sub section (2) of section 13 to the person detained, is or is not against public interest. Such finding of the Board shall be binding on the Government. (3) the report, of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. 17. Action upon report of Advisory Board. (1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such a period as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith" 19. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith" 19. Para 13 of the Judgment of Hon’ble Supreme Court in case titled "Wasi Uddin Ahmed, petitioner v. the District Magistrate, Aligarh, U.P and others, respondents reported in AIR 1981 SC page 2166 is reproduced as under :- "13. This court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperative indicated in Art. 22(5) are twofold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what is 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 detenu, therefore, has the right to be furnished with the grounds of detention along with the documents relied upon. Khudiram Dass v. State of West Bengal, (1975) 2 SCC 81 : ( AIR 1975 SC 550 ), Narendra Pushotam Umrao v. B.B. Gujral (1979) 2 SCR 315 : ( AIR 1979 SC 420 )." 20. The Hon’ble Supreme Court has thus held that the documents relied upon by the detaining authority are part of grounds of detention and grounds of detention would be incomplete without such documents. The "incomplete" grounds of detention have been placed before the Board. The Board itself has observed and recorded a finding that District Magistrate Srinagar has failed to place the entire record in support of detention order on the file. The Board has also observed that only two copies of FIRs have been placed on file. The Board has further observed that had the entire record in support of grounds of detention been made available same would have made things much better and clear. The Board has also observed that only two copies of FIRs have been placed on file. The Board has further observed that had the entire record in support of grounds of detention been made available same would have made things much better and clear. The very observation of Board makes it writ large on the face of record that the opinion framed by Board on the in-complete record has disabled them to have better and clear view of the case. Since the matter pertains to the personal liberty of an individual guaranteed by Article 21 of the Constitution of India, the Board has been prevented from taking a better and clear view of the case of the detenu. The opinion so framed by the Board in law cannot be said to be a valid opinion. The position becomes worse as the Board has recorded a finding that if the entire record would have been placed before it things would have become much better and clear. The opinion thus framed is shrouded in hazy circumstances. The opinion of the Board in its own words is thus neither better nor clear. Such an opinion cannot become basis for confirmation of detention of detenu. The Government who is repository of rights of the people cannot be permitted to play pranks with the guaranteed fundamental rights of its citizens. 21. A person deprived of his personal liberty by invoking the provisions of Act of 1978 has to be afforded all the procedural safe guards made available to him by Article 22 of the Constitution of India and provisions of the Act of 1978. To obey the mandate flowing from Article 22 of the Constitution of India and provisions of the Act of 1978 is a paramount and sacred duty of the State, as a person who is deprived of his personal liberty by invoking the provisions of the Act of 1978 has not to be send-up for trial so as to afford him an opportunity to prove his innocence. The state which is responsible for protecting the liberty of an individual in terms of the mandate contained in Article 21 and 22 of the Constitution of India is thus duty bound to honestly and fairly comply with the mandate of the constitution and the laws made. 22. The state which is responsible for protecting the liberty of an individual in terms of the mandate contained in Article 21 and 22 of the Constitution of India is thus duty bound to honestly and fairly comply with the mandate of the constitution and the laws made. 22. Article 22 (4) & (5) of the Constitution of India mandate that no law shall authorize the detention of the person for a longer period than three months unless the Board has reported before the expiration of said period of three months that there is in its opinion sufficient cause for such detention. The state government following the mandate of the Constitution of India has constituted the Board in terms of Section 14 of the Act of 1978. Section 15 provides that in every case where the detention order has been made under the Act of 1978, the government shall within four weeks from the date of detention place before the Board constituted by it under section 14, the grounds on which order has been made, the representation, if any, made by the person affected by the order and where the order has been made by an officer, the report by such officer made under sub section (4) of the Act of 1978. The government is thus duty bound to place before the Board the aforementioned material. Sub Section 1 of Section 16 provides that the Board shall, after considering the material placed before it......submit its report to the government within eight weeks from the date of detention. 23. An in-depth and close consideration of material would enable the Board to take a view and formulate an opinion as to whether there is or is not sufficient cause to detain a person. The Board is a Statutory body devised and designed by legislature to fulfill the intendment of the constitutional mandate contained in Art. 22 of the Constitution of India. The duty of the Board, a forum devised and engineered by legislature, is to ensure that the detenu does not suffer deprivation of his liberty guaranteed under Art. 21 of the Constitution of India unnecessarily and without any lawful justification. The very fact that State Advisory Board has to formulate an opinion as to whether there is sufficient cause or not for detaining a person inheres in it the duty to act fairly and reasonably by considering all material. The very fact that State Advisory Board has to formulate an opinion as to whether there is sufficient cause or not for detaining a person inheres in it the duty to act fairly and reasonably by considering all material. The material which is considered by the detaining authority before entering into subjective satisfaction for issuing order of detention has to placed before the State Advisory Board, so as to enable it to form an opinion as prescribed by section 16 of the Act of 1978. The opinion framed by the Board binds the government in terms of section 17 of the Act of 1978. In case the Board frames an opinion that there are no sufficient grounds for the detention of a person the State Government in terms of sub section (2) of Section 17 of the Act of 1978 is duty bound to revoke the order of detention and set at liberty such person forthwith. 24. The detenu who is not produced before any court of law to prove his innocence has been clothed with a shield by the constitution makers in terms of Art. 22 of the Constitution of India to file a representation and the detaining authority/Govt is duty bound to make available entire material to the Board in order to enable it to assess the same. This duty of the Govt is mandatory in nature. 25. As the entire material admittedly has not been placed before the Board, the Board has been prevented from effectively considering the case of the detenu as to whether there is sufficient cause for the detention of the detenu. The decision of the Board that there is sufficient cause for the detention of the detenu, in the fact situation of this case suffers from lack of application of mind and the said opinion is rendered illegal. Consequently the order of confirmation of the detention of the detenu passed by the Government is also rendered illegal. 26. Hon’ble Supreme court in case titled Haradhan Saha, petitioner v. The State of West Bengal and ors, Respondents reported in AIR 1974 SC Page 2154 at paragraph 24 to 26 has ruled that the Board has to consider in the light of the representation field by the detenu as to whether there is sufficient cause for his detention. The relevant paragraph is reproduced as under :- "24. The relevant paragraph is reproduced as under :- "24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire materials. The Board can also call for more materials. The Board may call the detenu at his request. The Constitution of the Board shows that it is to be consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fairplay and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22 (5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention." 27. The law laid down by the Hon’ble Supreme Court is fully applicable to the facts of this case as admittedly the entire material has not been placed before the Board, so the decision taken by the Board that there is sufficient cause for detaining the detenu cannot be said to be a just and legal. The Board is created in view of the mandate contained in Article 22 (4) of the Constitution of India. This Board which is comprised of Judge/retired Judge of the High Court and District Judge is under constitutional obligation to take a decision in most reasonable and fair manner by considering all the material. In this case when the Board recorded the finding that entire material was not placed before it, a duty was cast on it to call for the entire material. In the admitted fact situation of the case the opinion of the Board is illegal and the consequent confirmation order passed by the government for confirmation of the detention of the detenu is rendered illegal and consequently the detention of the detenu is also rendered illegal. 28. In the admitted fact situation of the case the opinion of the Board is illegal and the consequent confirmation order passed by the government for confirmation of the detention of the detenu is rendered illegal and consequently the detention of the detenu is also rendered illegal. 28. In this case there has been breach of procedural safeguards provided to the detenu u/s 15, 16 and 17 of the Act of 1978 as also the constitutional guarantee contained in Article 21 of the Constitution; the detention of the detenu is rendered illegal. 29. It has been specifically pleaded in the petition that the order of detention has been passed at the advise/directions of respondent No.3. This statement has remained un-controverted and un-rebutted in the counter affidavit. What is assumed for the purpose of this case is that the detaining authority has not applied its mind and has not entered into subjective satisfaction before issuing the detention order. 30. In order to make a detention order valid it has to be shown that the detaining authority has entered into the subjective satisfaction which has been held to be condition precedent for exercise of such power by Hon’ble Supreme Court in case titled Khudiram Das, petitioner v. The State of West Bengal and ors, Respondents reported in AIR 1975 SC 550 para 9 is reproduced as under:- "9. But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial review ability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority : if the it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji, AIR 1943 FC 75 at p. 92 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of `improper purpose’, that is a purpose not contemplated by the statute, has been recognized as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted, under the dictation of another body as the Commissioner of Police did in Commr. Of Police v. Gordhandas Bhanji, 1952 SCR 135 =A1R 1952 SC 16 and the officer of the Ministry of labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service, (1946) 2 All ER 201 the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of police or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it required to be satisfied. Then again the satisfaction must be grounded "on material which are of rationally probative value". Machinder v. King, AIR 1950 FC 129. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratap Singh v. State of Punjab, AIR 1964 SC 72 . If there are to be found in the stature expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matter. The authority must call its attention to the matters which it is bound to consider." 31. For the above stated reasons, this petition is allowed. The detention order No. "ORDER No.DMS/PSA/42/2010 Dated 17.07.2010 is quashed. The detenu namely Ghulam Nabi Thokar alias Shaheen S/o Ghulam Mohi-ud-din Thokar R/o Khankah Midoora, Tehsil Awantipora, Tral is ordered to be released forthwith. 32. Registrar Judicial to place on record of the petition Xerox copy of the report of Board which is part of the record produced by the ld. counsel for respondents and thereafter record be returned to Mr. G. Mustafa, Ld Dy.AG. Registry to convey order forthwith.