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2020 DIGILAW 526 (JK)

Chain Singh v. Union Territory of J&K

2020-10-12

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Challenge in this petition is thrown to the order No.01/PSA of 2020 dated 17.07.2020, issued by District Magistrate, Samba (for brevity “Detaining Authority”) whereby Chain Singh son of Late Shri Rawail Singh resident of Village Birpur Tehsil Bari Brahmana District Samba (for short “detenu”) has been placed under preventive detention and lodged in Sub Jail, Hiranagar. 2. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. It has also been contended that the petitioner has not been informed as to before which authority he had to make a representation. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main grounds that have prevailed during discussion are: (I) That the grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while formulating the groudns of detention which is a pre-requisite for passing an order of detention; (II) That the detenue has been disabled from making an effective representation against his detention as the translated copies of grounds of detention and the material on the basis of which the grounds of detention have been formulated have not been supplied to him. 6. 6. Per contra, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 7. While going through the detention records, as produced, the first ground projected by the learned counsel for the petitioner gets support from the material on record. The grounds of detention are replica of dossier with interplay of some words here and there, which exhibits non-application of mind on the part of detaining authority. In the process, the deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the police dossier. Here it will be apt to notice the observations of the Supreme Court in the case of Jai Singh and ors vs. State of J&K ( AIR 1985 SC 764 ), which are reproduced hereunder: “First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of …….” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter it is recited “The subject is an important member of …….” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into ‘you’ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.” 8. From a perusal of the aforesaid observations of the Supreme Court, it is clear that the grounds of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. 9. The similarity of contents of grounds of detention and police dossier in the instant case clearly exhibits mechanical functioning of the detaining authority, thereby making the impugned order of detention unsustainable in law. 10. Next it is contended by learned counsel for the petitioner that the detenue has been disabled from making an effective representation as the translated copy of the documents consisting of grounds of detention, which is in hyper technical language, has not been supplied to the detenue. It is further contended that the detenue being a semi-literate person was unable to comprehend the grounds of detention. It has also been contended that only the grounds of detention without copies of the documents forming basis of the grounds, have been supplied to the petitioner, which has hampered the petitioner from making a representation against the impugned order of detention. 11. The record does not suggest that the translated copies of grounds of detention have been supplied to the detenue. The Execution Report, which forms part of the detention record, shows that only grounds of detention have been furnished to the detenue. Thus, it is clear from the detention record produced before the Court that neither translated version of grounds of detention nor the material, such as copies of FIRs that find mention in the grounds of detention including the statements of witnesses recorded under Section 161 Cr. Thus, it is clear from the detention record produced before the Court that neither translated version of grounds of detention nor the material, such as copies of FIRs that find mention in the grounds of detention including the statements of witnesses recorded under Section 161 Cr. P. C during investigation of these FIRs, have been supplied to the detenue in the instant case. At least the detention record does not suggest that the aforesaid procedure has been adopted by the respondents in this case. 12. 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 aforesaid view I am fortified by the judgments rendered by the Supreme Court in the case Chaju Ram Vs. The State of Jammu & Kashmir, AIR 1971 SC 263 , Smt. Raziya Umar Bakshi Vs. Union of India ( AIR 1980 SC 1751 ) and Powanammal Vs. State of T. N. and another, (1999) 2 SCC 413 . 13. The detention record produced by the learned counsel for the respondents contains a copy of Execution Report, perusal of which shows that the grounds of detention have been read over and explained to the detenue by one Arjun Chib, SHO P/S Bari Brahmana. It is the case of the respondents that the said executing official has read over and explained the grounds of detention to the detenue. For supporting this contention, it was incumbent on the respondents to place on record a duly sworn affidavit of the said official, but no such affidavit has been filed. 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. Support, in this behalf, can be taken from the law laid down by the Supreme Court in the cases of State Legal Aid Committee, J&K Vs. Support, in this behalf, can be taken from the law laid down by the Supreme Court in the cases of State Legal Aid Committee, J&K Vs. State of J&K & others, AIR 2005 SC 1270 , Lallubhai Jogibhai Patel vs. Union of India & Ors, AIR 1981 SC 728 and the law laid down by this Court in the case of Mohammad Shaban Chopan Vs. State and another reported in 2003 (II) S.L.J 455. 14. In the instant case it is clear from the detention record that the petitioner has not been furnished the translated version of the grounds of detention nor has he been provided the material on the basis of which grounds of detention have been formulated. Further the executing officer has not filed an affidavit to show that he has fully explained the grounds of detention to the detenue in the language he understands. 15. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 16. Viewed thus, the petition is allowed and the impugned order of detention bearing No. 01/PSA of 2020 dated 17.07.2020, issued by respondent No.2-District Magistrate, Samba, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 17. The record, as produced, be returned to the learned counsel for the respondents.