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2018 DIGILAW 915 (JK)

Muneeb Hamid Bhat v. State of J&K

2018-11-28

RASHID ALI DAR

body2018
JUDGMENT : RASHID ALI DAR, J. 1. Challenge in this petition is to the order No. 01/DMK/PSA/2018 dated 31.05.2018, passed by District Magistrate, Kulgam-respondent No. 2 herein, whereby Muneeb Hamid Mir (hereinafter referred to as the detenue), has been taken into preventive detention and lodged in District Jail, Kathua. By now detenue is in preventive custody for more than seven months. 2. It is the contention of learned counsel for the petitioner that there has been total non-application of mind on the part of detaining authority while passing the impugned detention order as in the impugned order of detention it is recorded that the District Magistrate was satisfied to prevent the detenue from acting in any manner prejudicial to the "maintenance of public order" but in the grounds of detention it is recorded that the activities of the detenue are highly prejudicial to the "security of the State." 3. On perusal of the material available on filed, the submission appears to have weight. The District Magistrate has not been himself certain as to whether activities of the detenue are prejudicial to the "security of the State" or "maintenance of public order" because in grounds of detention finally he has concluded that his activities are prejudicial to the "maintenance of public order" therefore, he is required to be deterred from unlawful activities whereas in the order of detention he has recorded that his activities are prejudicial to the "security of the State." The said position suggests that the detaining authority has not applied its mind while passing the order of detention. It shall be quite apposite to quote para 9 of the judgment G.M. Shah vs. State of J&K, (1980) 1 SCC 132 : "As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia vs. State of Bihar and Others, one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State." It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State." It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detent has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh vs. Arif Ali and Others and Satya Brata Ghose vs. Arif Ali and Others. 4. One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention which shall form basis for passing the order of detention. In the order impugned as passed by District Magistrate, it is recorded: "Whereas on the basis of dossier placed before me by the Superintendent of Police, Kulgam, vide his No. Legal/PSA/04/2018/2742-45 dated 15.05.2018 am satisfied......" Which shows that detaining authority has not scanned and sifted the material itself for preparation of the grounds of detention, which clearly shows that there has been non-application of mind on the part of detaining authority which passing the impugned detention order, which renders the impugned order bad. 5. Learned counsel for the petitioner next contended that the detenue has been disabled from making an effective representation against the detention. In this connection it is contended that the material forming base of the grounds of detention has not been furnished to the detenue. 6. The respondents, despite opportunity, did not chose to produce the detention record so as to show that the relevant has been supplied to the detenue so as to enable him to make an effective representation against the detention. 6. The respondents, despite opportunity, did not chose to produce the detention record so as to show that the relevant has been supplied to the detenue so as to enable him to make an effective representation against the detention. Non-supply of the material would amount to violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right. 7. In paras 27 and 28 of the judgment captioned Thahira Haris vs. Government of Karnataka and Others, AIR 2009 SC 2184 , Hon'ble Apex Court has held as under: "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. 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. 8. Next it is contended by the learned counsel for the petitioner that the detenue has also been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand being illiterate. 9. Nothing has been brought on record which would suggest that the translated copies of grounds of detention have been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution. The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same. The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same. In my view I am fortified by the judgment rendered by the Hon'ble Apex Court in the case Chaju Ram vs. State of Jammu and Kashmir, AIR 1971 SC 263 . Following portion from para 9 of the judgment shall be quite apposite to be quoted: ".......The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with." 10. It shall also be quite apposite to quote following portions para from paras 3 and 5 of the judgment rendered by the Hon'ble Apex Court in the case captioned Smt. Raziya Umar Bakshi vs. Union of India, AIR 1980 SC 1751 : "3..........The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie." 5. .......in case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language he understands." 11. It shall be quite advantageous to quote following para from the judgment rendered in case captioned Powanammal vs. State of T.N. and Another, 1999 (2) SCC 413 : "The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 12. In para 3 of the counter affidavit it is projected that the grounds of detention were read over, explained and served to the detenue. Looking at the said ground from yet another angle, what can be said is that to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of State Legal Aid Committee, J&K vs. State of J&K and Others, AIR 2005 SC 1270 , wherein it has been held as under: "Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assessee and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act." 13. The personal liberty protected under Article 21 of the Constitution of India is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this regard support can be had from judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned Rekha vs. State of Tamil Nadu and Another, (2011) 5 SCC 244 . 14. In this regard support can be had from judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned Rekha vs. State of Tamil Nadu and Another, (2011) 5 SCC 244 . 14. For the stated reasons and the law laid down by the Hon'ble Apex Court, petition is allowed and impugned detention order bearing No. 01/DMK/PSA/2018 dated 31.05.2018, is quashed. Detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other cases.