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2020 DIGILAW 531 (JK)

Ab. Rehman Mir @ Shaheen v. State of J&K

2020-10-13

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—The District Magistrate, Pulwama vide his detention order No. 55/DMP/PSA/19 dated 08.08.2019 detained Ab. Rehman Mir @ Shaheen S/o Ghulam Hassan Mir R/o Litter under Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner, prejudicial to the security of the state. This order of detention is assailed by the detenu through his brother, namely, Farooq Ahmad Mir. 2. This order of detention has been assailed amongst others on the ground that; (i) the detenu has not been supplied all the material relied upon by the Detaining Authority, while passing the order of detention more particularly the dossier and other connected material;(ii) the grounds of detention are vague, sketchy and lacking in details, therefore, no effective representation can be made against the same; (iii) there is no live links between the detention and the object sought to be achieved; (iv) the detaining authority has not given any cogent or compelling reason to detain the detenu who was already in custody at the time of issuance of the detention order and (iv) the Detaining Authority has neither explained the order of detention nor provided translated copy of the grounds of detention and other material relied to the detenu.. The detenu, therefore, was prevented from making an effective representation in terms of Article 22(5) of the Constitution of India and under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. The detenu was not informed of his right of making representation against the order of detention to the Detaining Authority as well as the Government and, thus, has been deprived of his constitutional and statutory right. 3. Mr. Mir Suhail, learned AAG submits that the detenu has been detained for his activities which were prejudicial to the security of the state. He was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978 validly and legally by virtue of the detention order dated 08.08.2019 issued by the District Magistrate, Pulwama and all the statutory requirements and constitutional guarantees were fulfilled and complied by the Detaining Authority keeping in mind the object of law of preventive detention as the same is not only punitive but preventive. The Detaining Authority has passed the order of detention after arriving at its subjective satisfaction in the matter. The Detaining Authority has passed the order of detention after arriving at its subjective satisfaction in the matter. It is submitted that the grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been provided to the detenu. The detenu was also informed of his right of making a representation to the Detaining Authority as well as the Government against his dentition but he has not chosen to make representation against the same. 4. The case of the detenu was referred to the Advisory Board for its opinion and the Advisor Board in terms of Section 16 of the Act after considering all the material placed before it held that there is sufficient cause for detention of the detenu in the instant case and after the receipt of the opinion of the Advisory Board the Government vide order dated Home/PB-V/1861 of 2019 dated 16.09.2019 has confirmed the order of detention against the detenu. 5. Heard learned counsel for the parties and perused the record. 6. The right of making an effective representation as envisaged under Article 22(5) of the Constitution of India and under Section 13 of the Jammu and Kashmir Public Safety Act, 1978, is a right provided to the detenu to represent against his order of detention to the Detaining Authority as well as the Government and, therefore, the detenu must be communicated at the earliest all the material relied upon by the Detaining Authority at the earliest to enable him to make an effective representation. The detenu must know what weighed the Detaining Authority, while passing the order of detention to make an effective representation. 7. Perusal of the record reveals that the Detaining Authority while passing the order of detention on 08.08.2019 has relied upon the dossier and other connected documents. The order of detention dated 08.08.2019 reads as under: “Whereas, Sr. Superintendent of Police Pulwama Vide his letter No. Pros/PSA/DPO/19/802 dated 07.08.2019 has produced material record, such as a dossier and other connected documents in respect of Shir Ab. Rehman Mir @ Shaheen S/o Gh. The order of detention dated 08.08.2019 reads as under: “Whereas, Sr. Superintendent of Police Pulwama Vide his letter No. Pros/PSA/DPO/19/802 dated 07.08.2019 has produced material record, such as a dossier and other connected documents in respect of Shir Ab. Rehman Mir @ Shaheen S/o Gh. Hassan MirR/o Litter, Tehsil Litter, District Pulwama: 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; Whereas after perusal of the record submitted by the Superintendent of Police, Pulwama and after applying my mind carefully and having regard to the requirements of law, I am satisfied that with a view to prevent Shri Ab. Rehman Mir @ Shaheen S/o Gh. Hassan Mir R/o Litter Tehsil Litter Distrcit Pulwama from acting in a manner, prejudicial to the Security of the State, it is necessary to detain the said person under the provisions of J&K Public Safety Act;…..” 8. The Detaining Authority had relied upon the dossier and all the other connected material to arrive at its requisite subjective satisfaction while passing the order of detention. The perusal of the record, however, reveals that while the order of detention, the Executing Officer in compliance to the order of District Magistrate, Pulwama had executed the order on 09.08.2019. As per the execution report, while executing the order has provided to the detenu, Contents of PSA Warrant (01 leaf), notice (01 leaf), Grounds of detention (02 leaves) total (04 leaves). Therefore, the dossier and copies of FIR Nos. 02/2019, 335/2004, 64/2018 and other connected material have not been provided to the detenu, as such, there is infraction of the valuable right of the detenu of making an effective representation and the detention is vitiated. 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. 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. 9. It was submitted that the detenu is not an English literate person and knows only Urdu and Kashmiri languages, therefore, the Detaining Authority being aware of this fact has neither explained the same to the detenu in the language he understands, nor has provided the translated copies of the same in the language he understands to enable him to make an effective representation. Even the affidavit of the Executing Officer who has explained the documents or provided translated copies of the same has not been found on record. 10. The Supreme Court while considering a similar proposition in Hadibandhu Das v. District Magistrate, Cuttak & Anr. 1969 (1) SCR 227 , 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.” 11. In Farooq Ahmad Sheikh V. State of J&K( Spra), held as under: 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.” 12. In view of the aforesaid discussion and without adverting to the other grounds raised in this petition, the same is allowed. The impugned detention order No. 55/DMP/PSA/19 dated 08.08.2019 passed by District Magistrate, Pulwama, is quashed. The detenu- Ab. Rehman Mir @ Shaheen S/o Ghulam Hassan Mir is ordered to be released from the custody forthwith provided he is not required in any other case. 13. Let the detention record be handed over to learned counsel for the respondents by the Registry.