Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 475 (JK)

Mudasir Ahmad Rather v. State of J&K

2020-09-10

SINDHU SHARMA

body2020
JUDGMENT The District Magistrate, Shopian vide his order No. 60/DMS/PSA/2019 dated 26.09.2019 detained Mudasir Ahmad Rather S/o Late Abdul Aziz Rather R/o Arwani, District Anantnag under clause (a) of Section 8 of Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of State/Country. The detenu has challenged the said order of detention through his brother in the present petition. 2. The order of detention is challenged on the grounds that: (i) the procedural safeguards as envisaged under Constitution of India and the Jammu and Kashmir Public Safety Act were not complied with, thus, the detention has become illegal; (ii) the grounds of detention on which the Detaining Authority had derived its subjective satisfaction are vague, in-definite and unambiguous and no effective representation can be made against the said order; (iii) the Detaining Authority had not provided all the material relied upon to the detenu, while passing the order of detention, thus, prevented him from making an effective representation; (iv) the translated copies of the material relied upon, while passing the order of detention had also not been supplied to the detenu; (v) the detenu was arrested in FIR No. 10/2019 and was already enlarged on bail vide order dated 21.08.2019 but this important fact had not been noticed by the Detaining Authority, while passing the order of detention, thus, the detention order suffers from total non-application of mind and same is vitiated; (vi) the detenu at the time of passing of the detention order was already in police custody but the Detaining Authority had neither shown any awareness to this fact nor explained cogent or compelling reasons for detaining the detenu; and (vii) the grounds of detention are verbatim copy of the police dossier, as such, there is no application of mind by the Detaining Authority, while passing the impugned order of detention. 3. Mr. M. A Chashoo, learned AAG has filed the counter affidavit as well as produced the detention record. It is submitted by him that the detenu was detained vide order dated 26.09.2019 under section 8 of the Public Safety Act, 1978 as his activities were highly prejudicial to the security of the State and Country. 3. Mr. M. A Chashoo, learned AAG has filed the counter affidavit as well as produced the detention record. It is submitted by him that the detenu was detained vide order dated 26.09.2019 under section 8 of the Public Safety Act, 1978 as his activities were highly prejudicial to the security of the State and Country. The order of detention was executed on 28.09.2019 upon the detenu and he was informed that he could make a representation against the said order to the Government as well as the Detaining Authority. It is also contended that none of the legal and constitutional rights of the detenu have been violated and all the material relied upon by the Detaining Authority had been supplied to the detenu. It is further contended that the detention order has been passed by the Detaining Authority after perusal of the record/enquiry and after proper application of mind arrived at its subjective satisfaction. 4. Heard learned counsel for the parties and perused the record also. 5. The detenu was arrested in FIR No. 10/2019 and was subsequently admitted to bail by the competent Court vide order dated 21.08.2019, however, this important fact had not been noticed by the Detaining Authority and there is no reflection of the same in the grounds of detention. The Detaining Authority has not shown its awareness to these vital facts, while directing preventive detention of the detenu. The Detaining Authority has to be satisfied that the detenu is required to be put in the preventive detention and therefore, if all the facts including that the detenu stood released on bail had to be brought before the Detaining Authority. As the same was not done by the Detaining Authority, therefore, it amounts to total non-application of mind which vitiates the order of detention. 6. The Supreme Court while considering a similar issue in Anant Sakharam Raut and others V. State of Maharashtra and another, AIR 1987 SC 137 , has held as under: “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. 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..……..” 7. The Detaining Authority, while passing the order of detention on 26.09.2019 was not aware of the fact that the detenu had already been granted bail on 21.08.2019 and therefore, under these circumstances, impugned order suffers from total non-application of mind by the Detaining Authority and the detention of the detenu is vitiated. 8. The next contention raised is that the detention of the detenu is also vitiated as the detenu had not been furnished all the relevant material relied upon by the Detaining Authority, while passing the order of detention. The order of detention dated 26.09. 2019 reads as under: “Whereas on the basis of dossier the placed before me by the Senior Superintendent of Police, Shopian vide his No. CS/D- 1/2019/4883 dated 21.09.2019, I am satisfied that with a view to prevent Mr. Mudasir Ahmad Rather S/o Late Abdul Aziz Rather R/o Arwani, District Anantnag from acting in any manner prejudicial to the Security of State/Country, it is necessary to detain him under the necessary provisions of law.” 9. The District Magistrate, Shopian had drawn his subjective satisfaction on the basis of dossier and other record received from the SSP concerned, while passing the order of detention. This material relied upon by the Detaining Authority including dossier and other, however, was not supplied to the detenu. 10. The execution report of SI Javid Ahmad, reveals that the detenu was supplied with the documents, such as, the contents of PSA warrant (01 leaf), notice (01 leaf), grounds of detention (03 leaves) and copy of FIR’s (02 leaves) in total (07 leaves). 10. The execution report of SI Javid Ahmad, reveals that the detenu was supplied with the documents, such as, the contents of PSA warrant (01 leaf), notice (01 leaf), grounds of detention (03 leaves) and copy of FIR’s (02 leaves) in total (07 leaves). All the material relied upon by the Detaining Authority had not been furnished to the detenu. 11. 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 and copies thereof are supplied to the person detained, in his own language…..” 12. This apart, one of the grounds contended is that the detenu is not an English literate person and understands only Kashmiri and Urdu language, therefore, the translated copy of the grounds of detention and the other material had not been provided to the detenu. 13. In reply to this contention in Para-VIII of the counter, it is specifically submitted that the detenu has read up to 10th standard and can understand the Urdu and Kashmiri languages and accordingly the grounds of detention were explained to him in the same language. There is nothing on record to incorporate that the translated copies of the same were given to the detenu in the languages, he understands. Even the affidavit of the officer, who furnished the translated copies of the documents as well as explained to the detenu, the grounds of detention in the language he understand is not found on record. 14. In Raziya Umar Bakshi’s case (supra), the Apex Court, while considering the similar proposition has held as under:- “This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P. M. Shah, on behalf of the detaining authority, where he stated that the grounds were explained to the detenu in the language known to him. It was averred in para 5 that one Mr. A. K. Sharma, Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenu the order of detention and the grounds communicated to him on January 30, 1980. This affidavit, in my opinion, is wholly inadmissible in evidence. If it was a fact that Mr. Sharma had personally explained the grounds to the detenu then the respondents should have filed an affidavit of Mr. This affidavit, in my opinion, is wholly inadmissible in evidence. If it was a fact that Mr. Sharma had personally explained the grounds to the detenu then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenu by translating the same in the language which he understood. No such affidavit is forthcoming. No Contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenu. The service of the ground of detention on the detenu 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.” 15. In view of the above discussion, the detention of the detenu in this case is illegal and vitiated, therefore, there is no necessity to advert and consider other grounds which have been taken to challenge the impugned detention order Accordingly, this petition is allowed. The detention order No. 60/DMS/PSA/2019 dated 26.09.2019 of Mudasir Ahmad Rather S/o Late Abdul Aziz Rather is quashed. The respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 16. Let the detention record be handed over to learned counsel for the respondents by the Registry forthwith.