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2020 DIGILAW 529 (JK)

Aijaz Ahmad Mir v. State of J&K

2020-10-13

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—This Habeas Corpus Petition has been filed by the detenu questioning his detention order No. 29/DMP/PSA/19 dated 19.04.2019, passed by the District Magistrate, Pulwama detaining the detenu-Aijaz Ahmad Mir S/o Gh. Hassan Mir. The detenu has challenged the impugned order of detention through his brother Tariq Ahmad Mir. 2. The detenu has assailed his order of detention on the grounds that; (i) the detenu has not been supplied all the material relied upon by the Detaining Authority, while passing the order of detention, thus, this has prevented him from making an effective representation to the Detaining Authority as well as Government; (ii) the detenu is not an English literate person and the grounds of detention and the detention order has not been explained to him in the language, he understands; (iii) The translated copy of the documents have also not been provided to him to enable him to make an effective representation; (iv) the respondents have not stated the compelling reasons for his detention, which has vitiated the order of detention; and (v) all the procedural and constitutional safeguards as provided in terms of Article- 21 and 22(5) of the Constitution of India and under the provisions of Section 13 of the Public Safety Act have not been followed, thus, the detention is not sustainable. 3. Mr. Mir Suhail, learned AAG, has filed counter affidavit as well as produced the detention record. It is contented by him that the detenu was detained in pursuance of detention order No. 29/DMP/PSA/19 dated 19.04.2019 as his activities were considered to be prejudicial to the security of the State. The detenu was disturbing the peace and tranquility of the area and has been motivating the youth to join militancy and has also been extending logistic support to the militants, the detenu was involved in subversive activities for which FIRs bearing FIR Nos. 20/2019 and 192/2018 were registered in Police Station, Pulwama against him. It is further submitted that all the material relied upon by the Detaining Authority has been supplied to the detenu and the detenu was also explained of his right to make a representation against the order of detention. 20/2019 and 192/2018 were registered in Police Station, Pulwama against him. It is further submitted that all the material relied upon by the Detaining Authority has been supplied to the detenu and the detenu was also explained of his right to make a representation against the order of detention. The grounds of detention are precise, proximate, pertinent and relevant and the Detaining Authority has arrived at its subjective satisfaction, while passing the order of detention, thus, all the procedural and constitutional safeguards have been strictly followed by the Detaining Authority, while passing the order of detention. 4. Heard learned counsel for the parties and perused the record. 5. The right to make representation against the order of detention is one of the most important safeguard as provided under Article 22(5) of the Constitution of India to the detenu who has been detained under Public Safety Act. Article-22(5) of the Constitution of India reads as under:- “(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” 6. The Detaining Authority at the earliest must communicate all the material relied upon by it, while passing the order of detention in order to enable the detenu to make an effective representation at the earliest against the detention order in terms of Article-22(5) of the Constitution of India and Section 13 of the Public Safety Act. The detenu must know the fact what weighed the Detaining Authority for passing the order of detention for making effective representation. 7. Perusal of the record reveals that the Detaining Authority, while passing the order of detention on 19.04.2019 has relied upon the dossier and other connected documents. The order of detention dated 19.04.2019 reads as under: “Whereas, Sr. Superintendent of Police Pulwama Vide his letter No. Pros/Lgl/PSA/19/361 dated 02.04.2019 has produced material record, such as a dossier and other connected documents in respect of Shri aijaz Ahmad Mir S/o Sh. The order of detention dated 19.04.2019 reads as under: “Whereas, Sr. Superintendent of Police Pulwama Vide his letter No. Pros/Lgl/PSA/19/361 dated 02.04.2019 has produced material record, such as a dossier and other connected documents in respect of Shri aijaz Ahmad Mir S/o Sh. Hassan Mir R/o Logripora Bomai, Sopore, Tehsil Sopore, District Baramulla; Whereas I , District Magistrate Pulwama have perused the contents and recommendations mentioned in the dossier carefully after it was produced before me in respect of the said person; ………………” 8. The Detaining Authority had relied upon the dossier and all the other connected material to arrive at its subjective satisfaction, while passing the order of detention. The perusal of the record and execution report signed by the Executing Officer-Sumander Mir reveals that impugned order of detention ( 1 leaf), notice of detention to the said detenu (1 leaf), grounds of detention (2 leaves), Dossier of detection (nil) and other related documents (nil ) total (4 leaves) were handed over to the detenu. It appears that the detenu has not been supplied all the material including dossier, FIR Nos. 20/2019 and 192/2018 and other documents relied upon by the Detaining Authority, while passing the order of detention which has resulted in an infraction of the valuable right of the detenu as provided under Article 22(5) of the Constitution of India as well as Section 13 of the Public Safety Act. 9. 20/2019 and 192/2018 and other documents relied upon by the Detaining Authority, while passing the order of detention which has resulted in an infraction of the valuable right of the detenu as provided under Article 22(5) of the Constitution of India as well as Section 13 of the Public Safety Act. 9. In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440 , the Apex Court, while considering a similar issue has held as under: “Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution”. 10. In Farooq Ahmad Sheikh V. State of J&K, 2017(2) SLJ 681, this court while considering the similar matter has held: “20. From the perusal of the Execution Report what can be said, in unequivocal terms, is that the detenue, along with the documents in the shape of the copy of detention order and the copy of the grounds of detention and not the copies of the F.I.Rs, was handed over to the jail authorities of the Central Jail, Kot Bhalwal, against proper receipt and these were read over and explained to him. Therefore, it can, irresistibly, be concluded that the copies of the ‘First Information Reports (FIRs)’ bearing NOs. Therefore, it can, irresistibly, be concluded that the copies of the ‘First Information Reports (FIRs)’ bearing NOs. 85/2016, 88/2016, 116/2016 & 145/2016 and the record of the investigation, made in them, were not made available to the detenue, which is an infraction of law as it has hampered him from making an effective representation as provided under law.” Therefore, unless the detenu is provided all the material and the reasons for what weighed in the mind of the Detaining Authority for passing the order of detention, no effective representation could be made against the detention, as such, the detention order is vitiated. 11. It is specifically submitted that as the detenu is not an English literate person, and he knows only Urdu and Kashmiri languages and translated copy of the documents were not supplied to him. Even the affidavit of the officer who explained the same to him in Kashmiri language is not on record. This has resulted in an infraction of a very valuable right to make an effective representation against the detention order. 12. In Hadibandhu Das v. District Magistrate, Cuttak & Anr. 1969 (1) SCR 227 , it has been held that: “merely oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to a denial of right of being communicated the grounds. In the instant case, it is not even alleged in the affidavit of Mr. Shah that any translation or translated script of the grounds was furnished to the detenu.” 13. Similarly, in Farooq Ahmad Sheikh case (Supra), while considering a similar proposition has held: 21. Looking at the said ground from yet another angle, what can be said is that 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. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270 , wherein it has been held as under : “1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act.” 14. Similarly, in Raziya Umar Bakshi V. Union of India and others, AIR 1980 SC 1751 , the court has held that a person who explained the grounds of detention to the detenu should have filed an affidavit, but no such affidavit of the person who has explained and translated the grounds of detention in this case is found on record to show that the detenu was actually explained or translated the grounds of detention and, this has also vitiates the detention of the detenu. 15. In view of the aforesaid discussion, there is no need to advert to other grounds raised by the detenu in this petition. 15. In view of the aforesaid discussion, there is no need to advert to other grounds raised by the detenu in this petition. This petition is allowed and impugned detention order No. No. 29/DMP/PSA/19 dated 19.04.2019, in terms whereof, the detenu Aijaz Ahmad Mir S/o Gh. Hassan Mir was detained, is quashed. Accordingly, 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 returned back to learned counsel for the respondents by the Registry forthwith.