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2020 DIGILAW 459 (JK)

Showkat Ahmad Ganie v. State of J&K

2020-09-03

SINDHU SHARMA

body2020
JUDGMENT The Detenu Showkat Ahmad Ganie S/o Mohammad Kamal Ganie was detained by the District Magistrate Budgam vide his order No. DMB/PSA/04 of 2019 dated 23.02.2019 with a view to prevent him from acting in any manner prejudicial to the security of the State under section 8 of the Public Safety Act, 1978. This detention order has been challenged by the detenu through his brother Nissar Ahmad Ganie. 2. The detention order has been assailed on the ground that; (i) the detenu was already in custody in FIR No.263/2017 and FIR No.448/2013 and was granted bail in both these cases but the detaining authority has not shown any awareness to these orders of bail and the same are not reflected in the grounds of detention, therefore, the order of detention is vitiated; (ii) the grounds of detention are vague and non-existence, as such, no prudent man can make an effective representation against the same; (iii) the detention order has been passed after a delay of more than one year from the date of alleged activity and the detention, the same is bad; (iv) The detention order also states that the detenu be detained for a maximum period of detention which is not in accordance with the mandate of the Act; (v) the grounds of detention are a verbatim copy of the dossier, therefore, this is total non-application of mind; (vi) the detenu has not been furnished all the relevant material like grounds of detention, copy of detention order, FIR, statements under Section 161 Cr. P. C. and 164-A Cr.P.C. and, therefore, the detenu has been prevented from making an effective representation which has violated his right under Article 22(5) of the Constitution of India and under the Public Safety Act; (vii) The detenu is not an English literate person and the grounds of detention as well as the material relied upon has neither been explained to the detenu in the language, he understands nor the translated copy of the material relied upon has been supplied to him; (viii) the detenu was already detained on the same set of allegations vide order No. DMB/PSA/08 of 2018 dated 18.07.2018 which was challenged by the detenu in Habeas Corpus Petition No. 188/2018 and the same was quashed vide order dated 20/11/2018, therefore, the order of detention on the same set of allegations is bad in the eye of law and deserves to be quashed. 3. Mr. B. A. Dar, learned Sr. AAG has produced the record. Learned Sr. AAG submits that the detention of the detenu is in accordance with the provisions of Public Safety Act. All the procedural safeguards and constitutional guarantees were duly complied with. The Detaining Authority has passed the order of detention after deriving subjective satisfaction in the matter. 4. The case set up by the detenu is that, detenu was arrested in FIR No. 38/2017 and FIR No. 263/2017 and was admitted to bail. However, the Detaining Authority has not shown any awareness in the detention order to the fact that whether the detenu has applied for bail or admitted to bail. The Detaining Authority had to record its subjective satisfaction that there were reasonable grounds to believe that the detenu was likely to be released on bail and only on recording of such satisfaction, the detention order could be passed. In the absence of the same, it is apparent that there is no application of mind by the Detaining Authority while passing the order of detention. 5. The Apex Court while considering a similar proposition in Anant Sakharam Raut and others v. State of Maharashtra and another, AIR 1987 SC 137 , has held that: “5 ……. In the absence of the same, it is apparent that there is no application of mind by the Detaining Authority while passing the order of detention. 5. The Apex Court while considering a similar proposition in Anant Sakharam Raut and others v. State of Maharashtra and another, AIR 1987 SC 137 , has held that: “5 ……. the one contention strongly pressed before us by the petitioner’s counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in three cases. This indicates a total absence of application of mind on the part of the detaining authority while passing the order of detention. “7 ……… that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the Judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith..……..” 6. The detenu was earlier detained vide detention order dated 18.07.2018, this order of detention was challenged by the detenu in HCP No. 188/2018 and the same was quashed by this Court vide order dated 20.11.2018, on this very ground. The Detaining Authority, however, has still not considered this ground, while passing the impugned order of detention, thus, gives rise to inevitable inference of total non-application of mind by the Detaining Authority. 7. Perusal of the record reveals that the grounds of detention in this petition and in earlier petition are almost the same except for the last three paragraphs which have been introduced in the present detention order in the grounds of detention. A similar situation arose for consideration before the Apex Court that whether the detention order can be passed on the same grounds which stands quashed by the court. A similar situation arose for consideration before the Apex Court that whether the detention order can be passed on the same grounds which stands quashed by the court. In Chhagan Bhagwan Kahar, V. N. L. Kalna & ors., AIR 1989 SC 1234 , it was held as under :- 12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even alongwith the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order.” 8. The next contention of the detenu is that he has not been supplied all the material relied upon by the detaining authority while passing the order of detention. The execution report on record filed by Gh. Qadir reveals that the detenu has been supplied PSA warrant, grounds of detention (seven leaves), however, the other material relied upon by the detaining authority has not been provided to the detenu in order to make an effective representation and has, thus, violated his right as guaranteed under Article 22(5) of the Constitution and Section 13 of the PSA. 9. The detenu has right to be furnished all the relevant material as relied upon by the detaining authority, he must know what was in the mind of the detaining authority, while passing the order of detention in order to make an effective representation. Since the same has not been furnished to the detenu, as such, this vitiates the order of detention. In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, AIR 1999 SC 3051 , the Apex Court observed as under:- “…. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language…..” 10. Thus, the non-supplying of the material has deprived the right of the detenu to make an effective representation. An effective representation cannot be contemplated by the detenu till he knows what was in the mind of Detaining Authority, while passing the order of detention. 11. In view of the aforesaid discussion and without adverting to the other grounds raised in this petition, this petition is allowed. Accordingly, detention order No. DMB/PSA/04 of 2019 dated 23.02.2019 is quashed. The detenu is directed to be released from custody forthwith if he is not otherwise required in any other case. 12. Let the detention record be returned back to the learned Sr. AAG by the Registr