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2020 DIGILAW 458 (JK)

Abdul Gani Rather v. Union Territory of J&K

2020-09-03

SINDHU SHARMA

body2020
JUDGMENT The detention of Abdul Gani Rather @ Gani Yazah S/o Ab. Khaliq Rather by the District Magistrate, Pulwama vide order No. 06/DMP/PSA/20 dated 15.01.2020 to prevent him from acting in any manner prejudicial to the Security of the State under Section 8 (a) of the Jammu and Kashmir Public Safety Act, 1978 is assailed in this petition by the detenu through his wife. 2. The detenu has challenged the order of detention on the grounds that; (i) the detenu has not been furnished all the material relied upon by the Detaining Authority, while passing the order of detention and this has prevented him from making an effective representation; (ii) the detention order is in the language which the detenu does not understand but the same has not been translated and explained to him in the language, he fully understands; (iii) the impugned order of detention has been passed when the detenu was already in custody arrested in FIR No. 05/2019 and has not shown any compelling and cogent reason for passing the order of detention; (iv) the detenu was arrested on 22.12.2019 in FIR No. 05/2019 under Sections 148, 149, 336 & 427 RPC and had neither applied for bail nor was there any likelihood of bail being granted to him in near future as he was arrested in non-bailable offences, therefore, the impugned detention order suffers from total non-application of mind; and (v) lastly, it is submitted that the detenu vide impugned order of detention dated 15.01.2020 was detained from acting in any manner prejudicial to the security of the State under the provisions of the Jammu and Kashmir Public Safety Act, 1978. However, as per the grounds of detention, District Magistrate Pulwama has stated that in order to prevent the detenu from indulging in the activities which are prejudicial to the maintenance of the public order, it is necessary to detain him, there is, thus, total non-application of mind by the Detaining Authority. Lastly, the grounds of detention are vague and mere assertion on which no representation can be made. 3. Mr. Mir Suhail, learned AAG has filed the counter as well as produced the detention record. As per learned AAG, all the statutory requirement and constitutional safeguards have been fulfilled and complied. The detention order has been passed by the Detaining Authority after deriving its subjective satisfaction in the matter. 3. Mr. Mir Suhail, learned AAG has filed the counter as well as produced the detention record. As per learned AAG, all the statutory requirement and constitutional safeguards have been fulfilled and complied. The detention order has been passed by the Detaining Authority after deriving its subjective satisfaction in the matter. The grounds of detention as well as the entire material relied upon while passing the order of detention have been furnished to the detenu. The Executing Officer in compliance to the District Magistrate’s order has furnished to the detenu all material relied upon by the Detaining Authority and explained the detention order and grounds to the detenu in the language, he understands. Execution report is on record. The grounds of detention are precise, proximate, pertinent and relevant. 4. Heard learned counsel for the parties and perused the record. 5. The detenu vide impugned detention order dated 15.01.2020 had been detained in order to prevent him from acting in any manner prejudicial to the security of the State but the grounds on which the satisfaction of this detention is derived are on the basis of prejudicial to the Maintenance of Public Order. The Supreme Court, while considering the similar issue in G. M. Shah V. State of Jammu and Kashmir, 1980 AIR 494, has held that:- “It may be noted that whereas the order of detention stated that it had been passed with a view to preventing the detenu “from acting in any manner prejudicial to the maintenance of public order”, in the last paragraph of the grounds furnished to the detenu, it was stated that “your remaining at large is prejudicial to the maintenance of public order and also to the security of the State”. As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. 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 detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(Supra) and Satya Brata Ghose v. Arif Ali & Ors (Supra) The order of detention is, therefore, liable to be quashed and the detenu is entitled to be set at liberty. The petition is accordingly allowed.” 6. Reliance of the Detaining Authority on both the expressions prejudicial to the security of the State and prejudicial to Maintenance of Public Order which are distinct, is illegal in view of the settled law in G. M. Shah’ case (supra), as such, the detention of the detenu is vitiated. 7. The next contention of the detenu is that he was not furnished all the relevant material relied upon by the Detaining Authority while passing the order of detention and the same has prejudiced his right to make an effective representation. The execution report which is on record reveals that the detenu was supplied contents of PSA warrant, notice one leave, grounds of detention, two leaves in total (four leaves). Therefore, relevant material including dossier, FIRs have not been supplied to the detenu, thus, prevented him from making an effective representation under Article 22(5) of Constitution of India and Section 13 of Public Safety Act. 8. The Supreme Court in Sophia Ghulam Mohd. Therefore, relevant material including dossier, FIRs have not been supplied to the detenu, thus, prevented him from making an effective representation under Article 22(5) of Constitution of India and Section 13 of Public Safety Act. 8. The Supreme Court in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, AIR 1999 SC 3051 , while considering the right of the detenu to be supplied all the material relief upon by the Detaining Authority, while passing the order of detention has held as under:- “…….. The right to be communicated the grounds of copies thereof are supplied to the person detained, in his own language…..” 9. There being no sufficient compliance of the requirement of law for providing the detenu with the constitutional safeguards as provided under Article-22(5) of the Constitution of India as well as Section 13 of the Public Safety Act, as such, the impugned order of detention is vitiated. 10. In view of the aforesaid discussions and without adverting to the other grounds raised in the petition, this petition is allowed. The impugned detention order of Abdul Gani Rather @ Gani Yazah S/o Ab. Khaliq Rather R/o Larve Tehsil Kakapora, District Pulwama is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 11. Let the detention record be returned back to learned counsel for the respondents by the Registry.