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2020 DIGILAW 474 (JK)

Vikas Yousuf Beigh v. State of J&K

2020-09-10

SINDHU SHARMA

body2020
JUDGMENT District Magistrate, Shopian vide order No. 57/DMS/PSA/2019 dated 27.08.2019 detained Vikas Yousuf Beigh @ Vicky S/o Mohd. Yousuf Beigh with a view to prevent him from acting in any manner which was prejudicial to the security of the State/Country. This detention order has been challenged by the detenu through his brother. 2. The detention of the detenu has been assailed amongst others on the grounds that; (i) the detenu was already in custody at the time of passing of impugned detention order in case arising out of FIR No. 123/2019 in which he had neither applied for bail nor bail could have been granted as this case involved the commission of offence under Chapter-IV of Unlawful Activities (Prevention) Act; (ii) the Detaining Authority had not shown any compelling reason for passing the order of detention against the detenu, who was already in custody; (iii) the Detaining Authority had not furnished the relevant material like copy of dossier, FIRs and other relevant material which were relied upon by the Detaining Authority, while passing the order of detention and this had prevented him from making an effective representation against the order of detention; (iv) Detaining Authority had not prepared the grounds of detention itself which was prerequisite for passing the order of detention but has relied upon the police dossier. There is, thus, total non-application of mind, while passing the order of detention; (v) the detenu was neither informed of his right to make an effective representation against the detention order nor to whom the same was to made, therefore, the detention order is illegal and, as such, is vitiated. 3. Mr. M. A. Chashoo, learned AAG appearing on behalf of the respondents, has filed counter affidavit as well as produced the detention record. According to learned AAG, the detenu was detained under the provisions of the Act vide detention order dated 27.08.2019. All statutory and constitutional guarantees were fulfilled and complied with by the Detaining Authority, while passing the order of detention. It is submitted that the preventive detention is not punitive but only preventive and the Detaining Authority had derived its subject satisfaction after considering all the grounds of detention, order of detention and all the material on record. All statutory and constitutional guarantees were fulfilled and complied with by the Detaining Authority, while passing the order of detention. It is submitted that the preventive detention is not punitive but only preventive and the Detaining Authority had derived its subject satisfaction after considering all the grounds of detention, order of detention and all the material on record. In compliance to the District Magistrate’s order, warrant of detention was executed by the Executing Officer-Javid Ahmad/ SI of DPL Shopian and the detenu was handed over to Superintendent Central Jail, Srinagar. 4. Heard learned counsel for the parties and perused the record. 5. Perusal of the record reveals that the detenu was detained vide order dated 27.08.2019 which reads as under: ‘Whereas, on the basis of dossier placed before me by the Sr. Superintendent of Police, Shopian vide his No. CS/D- 1/2019/3965 dated 15.08.2019, I am satisfied that with a view to prevent Vikas Yousuf Beigh @ Vicky S/o Mohd. Yousuf Beigh R/o New Colony, Largam, District Shopian from acting in any manner which is prejudicial to the Security of the State/Country, it is necessary to detain him under the necessary provisions of law’. 6. The detenu was, thus, detained after relying upon the dossier and the other relevant material placed on record. The execution report of Javid Ahmad SI, who in compliance to the District Magistrate’s order, had executed the PSA warrant upon the detenu reveals that copy of warrant, notice, grounds of detention in total (05) leaves were handed over to the detenu against proper receipt. Therefore, all the material referred to and relied upon by the Detaining Authority, including dossier and FIR were supplied to the detenu, while passing the impugned detention order and the same has prevented him from making an effective representation. Right to representation is an important right available to the detenu. A valuable right was denied to the detenu to make an effective representation against the impugned order of detention which could only be made if all the relevant material relied upon by the Detaining Authority for arriving at the requisite satisfaction to pass the order of detention was furnished to the detenu and since this material had not been supplied to the detenu, therefore, the detention order is vitiated. 7. 7. In Icchu Devi Choraria (Smt.) v. Union of India and others, (1980) 4 SCC 531 , the Supreme Court dealt with in great the significance of clause (5) of Article 22 and sub-section 3 of Section 3 of COFEPOSA Act. The court observed: “Now it is obvious that when Clause (5) of Article 22 and Subsection (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated, in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.” 8. Similarly, 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. 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…..” 9. This apart, the detenu was already in custody in FIR No. 123/2019 when the order of detention was passed, this assertion has not been refuted by learned counsel for the respondents. Although in the grounds of detention, four FIRs have been reflected in which the detenu was involved but the Detaining Authority has nowhere reflected the compelling reasons for passing his detention while he was already in custody. 10. The Apex Court in Binod Singh v. District Magistrate, Dhanbad Bihar & ors., (1986) 4 SCC 46, held that if a person was already in custody and there is no imminent possibility of his being released, the power of preventive detention should not ordinarily be exercised. There must be cogent material before the office passing the order of detention that the detenu is likely to be released on bail. 11. In Union of India vs Amrit Lal Manchanda and anr (2004) 3 SCC 75 , the Hon’ble Apex Court has held that there must be cogent material before the officer passing the order of detention and that the detenu is likely to be released on bail. 12. In Rekha vs. State of Tamil Nadu & anr. 2011 (5) SCC 244 , the Apex Court held as under :- 37. As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another (1987) 2 SCC 22 , vide para 5, : “...The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard....” 39. Personal liberty protected under Article 21 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. Personal liberty protected under Article 21 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. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case: (QBD p. 461) “Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.” 13. In view of the foregoing discussion and without adverting to the other grounds raised in the petition, this petition is allowed. Impugned order of detention No. 57/DMS/PSA/2019 dated 27.08.2019 passed by the District Magistrate, Shopian, is quashed. Accordingly, the detenu-Vikas Yousuf Beigh S/o Mohd. Yousuf Beigh @ Vicky be released from the custody forthwith provided he is not required in any other case. 14. Let the detention record be handed over to learned counsel for the respondents by the Registry.