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2016 DIGILAW 321 (JK)

Jahangir Ahmad Khan v. State of J&K

2016-06-07

ALI MOHD.MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : Ali Mohd. Magrey, J. 1. The instant LPA is filed seeking reversal of judgment and order dated 28.03.2016, for short impugned order, passed in a habeas corpus petition, for short HCP No. 11 of 2016, titled Jahangeer Ahmad Khan v. State & Anr., by virtue of which the petition has been dismissed being meritless. Before the grounds of challenge could be narrated, the dispute in brief, would be appropriate to refer to, thus:- 2. A petition, challenging the order of detention being Order No. DIVCOM "K717/2016, dated 4th February, 2016, issued by respondent No. 2, ordering preventive detention of detenue in terms of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, was filed before the Writ Court seeking its quashment on the grounds detailed as under: "(a). That no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenue in preventive detention, moreso in view of the fact that when the detenue was already implicated in FIR Nos. 72/2015 P/s Kreeri and 219/2015, registered at P/s Pattan. (b). That the detenue has been furnished the grounds of detention without the supporting material warranting such detention, therefore, detenue could not make the effective representation against his detention. Omission on the part of detaining authority in not providing the supporting material vitiates the process of detention and renders the order of detention as illegal and violative of fundamental right guaranteed to the detenue. (c). That the order of detention is neither approved within the statutory period nor has any reference been made to the Advisory Board. (d). That the order of detention has been executed with inordinate delay which too renders the detention of the detenue bad in law." 3. A specific plea was raised in the petition that petitioner/appellant is innocent; is not involved any criminal activity; has been bailed out by the competent court of law after having been apprehended in case FIR No. 219/2015, of Police Station Pattan for being in possession of 61 bottles of Onrex. 4. A specific plea was raised in the petition that petitioner/appellant is innocent; is not involved any criminal activity; has been bailed out by the competent court of law after having been apprehended in case FIR No. 219/2015, of Police Station Pattan for being in possession of 61 bottles of Onrex. 4. The learned Single Judge, after hearing the parties, dismissed the petition of the detenue, on the ground that detenue appears to have been apprehended for more than one occasion in the similar kind of activities, therefore, he deserves to be kept in preventive detention so that society at large is saved from his evil designs. 5. Feeling aggrieved of the dismissal, the instant LPA has been filed seeking reversal of the judgment on the ground that learned Single Judge has erred in law in not appreciating the controversy in its right perspective. It is pleaded that the appellant/detenue had very specifically averred in his petition that the detaining authority, respondent No. 2, has violated the law on the subject while detaining the appellant; that there was total non-application of mind on the part of respondent No. 2 in detaining the appellant; that no material was furnished to the detenue along with the grounds of detention, so as to enable him to make effective representation against his detention; that there is no whisper about the grounds having been urged by the appellant in support of his case inasmuch as no finding at all is coming forth from the impugned order to demonstrate the reasons of rejecting the petition of the appellant. 6. It is further the case of appellant that the ground taken in the grounds of detention that appellant is shown to be a member of the organized drug trafficking gang working in District Baramulla, is not supported by any material, thereby rendering the same as non-est in the eyes of law. 7. Heard learned counsel for the parties and considered the submissions made. 8. Learned counsel for appellant submits that impugned order is bad as the same only reiterates what is urged in the grounds of detention. He further submits that there is complete non-application of mind on the part of respondent No. 2 in issuing the order of detention as there was no material muchless a clinching material before him that warranted issuance of a detention order. 9. He further submits that there is complete non-application of mind on the part of respondent No. 2 in issuing the order of detention as there was no material muchless a clinching material before him that warranted issuance of a detention order. 9. Learned counsel for appellant further submits that the impugned order is bad in law as it did not appreciate as to whether the quantum of drug alleged to have been seized from appellant's possession amounts to an offence punishable in terms of Section 3 of the NDPS Act. He would, therefore, pray that the impugned order be set-aside being bad in law and allow the petition of the appellant by quashing the order of detention. 10. Learned counsel for the appellant/detenue submits that the grounds of detention and the material referred to and relied upon has no relevance as the detenue was already implicated and arrested in connection with aforesaid FIRs registered in Police Station, Keeri and Pattan, therefore, there is no possibility of detenue being involved in the activities subversive to the security of State. It is submitted that in absence of material the detention order is issued on mere ipse dixit of the Detaining Authority, rendering the detention order as bad in law. In this connection, the learned counsel for the appellant has referred to and relied upon (2006) 2 Supreme Court Cases 664, titled T.V. Sravanan Alias S.A.R. Prasava v. State Through Secretary & Anr. 11. Learned State Counsel while defending the impugned order as also the order of detention submits that no illegality can be attributed to the impugned order as the act in which the appellant is involved is heinous in nature and it works against the society as a whole. He further submits that all the requirements of law were duly followed and appellant cannot be right in saying that he was not given a chance to make effective representation against his detention or that the grounds of detention were not supplied or made understand to him. He would, therefore, pray that the appeal of the appellant be dismissed and the order impugned be upheld. 12. He would, therefore, pray that the appeal of the appellant be dismissed and the order impugned be upheld. 12. The contention of the respondents' counsel that due regard has been given to the law on the subject while issuing the order of detention is naive, therefore, rejected, for, there is nothing on the file which would suggest that respondent No. 2, detaining authority, has derived subjective satisfaction that appellant/detenue is, in fact, involved in the acts those warrant his preventive detention. The respondent No. 2 has also not made any effort to see that the detenue gets informed about his right to make effective representation against his detention. 13. On the other hand the contention of learned counsel for appellant that, impugned order is bad because it does not give any finding as regards the pleas raised against the detention of the appellant holds good because the impugned order nowhere reflects as to whether the requirements of law required to be followed in ordering preventive detention of an individual have been given due regard or have been observed in breach though a mention is made therein that procedure has been followed. 14. The Hon'ble Apex Court has been consistently holding that the liberty of an individual is of utmost importance and it cannot be curtailed at the drop of the hat when there are no plausible reasons available warranting such action. The law on the subject is thrashed many a times and it does not require any further elucidation that unless a rare cause is shown to decipher that detention of a particular individual is indispensable to maintain the public order. The detention of an individual in a preventive custody undoubtedly is bad in law even if the procedure under which he is required to be kept in such detention is not fully followed or is followed unmindfully. 15. True that the offence alleged to have been committed by the appellant is heinous and against the social ethos, but the tool of preventive custody being resorted to in a mechanical way does not suffice the detention. Every action of the State Functionaries is expected to be a lawful rather than a colorable exercise aimed to ensure that the rule of law is upheld in every case irrespective of its specialty or rareness. Every action of the State Functionaries is expected to be a lawful rather than a colorable exercise aimed to ensure that the rule of law is upheld in every case irrespective of its specialty or rareness. Like the appellant, the State Functionaries too are accountable for their actions and they cannot enjoy impunity against law for snatching a valuable right of freedom to life of an individual in disregard of the law on the subject. 16. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the material considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. In the instant case no such material is supplied to the detenue, as is revealed from the detention records. In the event such grounds of detention and material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to one such judgment of the Supreme Court herein. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440 , the Apex Court, relying on its earlier judgments in Khudiram Das v. State of W.B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 ; Shalini Soni v. Union of India, (1980) 4 SCC 544 ; Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 ; Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC 405 , in paragraph 10 of the judgment, has held as under: "Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution". 17. In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). 18. 17. In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). 18. In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other material referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised. 19. In Lallubhai Jogibhai Patel case (supra), the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court in that case observed as under: "'Communicate' is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'grounds' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed." 20. Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the detenu was not supplied the material relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of grounds of detention. Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the detenu was not supplied the material relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of grounds of detention. No other material/documents, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu. Further, the grounds shown to have been served on and supplied to the detenu are in English language. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention. 21. For all what has been said hereinbefore the instant LPAHC is allowed. The impugned order passed by the learned Single Judge dated 28th March, 2016 is set-aside, consequent thereto the HCP No. 11/2016, is allowed; the detention order of the appellant bearing No. DIVCOM "K717/2016, dated 4th February, 2016, issued by respondent No. 2 is quashed and the appellant is directed to be released from custody forthwith, if not required in any other case. Record be returned to the learned State Counsel.