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2020 DIGILAW 532 (JK)

Mohammad Amin Allaie v. State of J&K

2020-10-13

SINDHU SHARMA

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Judgment Sindhu Sharma, J.—The District Magistrate, Budgam vide his order No. DMB/PSA/73 of 2019 dated 14.09.2019, detained the detenu-Mohammad Amin Allaie S/o Wali Mohammad Allaie with a view to prevent him from acting in any manner, prejudicial to the security of the state under Section 8(a) of the J&K Public Safety Act, 1978. The detenu has challenged this order of detention through his son Sameer Ahmad Allaie. 2. The impugned order of detention has been assailed by the detenu amongst others on the grounds that; (i) all the material relied upon by the Detaining Authority, while passing the order of detention has not been supplied to the detenu, thus, preventing him from making an effective representation as granted in terms of Article-22(5) of the Constitution of India and Section 13 of the Public Safety Act; (ii) the detenu was also not informed of his right to make a representation before the Detaining Authority and this has resulted the violation of his rights as guaranteed by the constitution; (iii) 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; (iv) the translated copy of the documents has also not been provided to him to enable him to make an effective representation to the Detaining Authority; (v) the detenu is not an English literate person and all the grounds of detention as well as the detention order has not been explained to him in the language, which he understood; (vi) the detenue was already in custody in FIR No. 229/2017 and he had neither applied for bail nor bail was due to him but despite that fact, the Detaining Authority has not spelled out any compelling reasons for passing the order of detention; and (vii) 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 has become invalid. 3. The respondents have not filed counter despite repeated opportunities, however, the detention record has been produced. Learned counsel for the respondents submits that the detention of the detenu is strictly in accordance with the provisions of the Public Safety Act. 3. The respondents have not filed counter despite repeated opportunities, however, the detention record has been produced. Learned counsel for the respondents submits that the detention of the detenu is strictly in accordance with the provisions of the Public Safety Act. Since the activities of the detenu were prejudicial to the security of the state, therefore, after considering all the material furnished by the police, the Detaining Authority arrived at its requisite subjective satisfaction on considering all the material placed before it. The grounds of detentions are precise, proximate and relevant and do not suffer from any ambiguity. All the material relied upon, while passing the order of detention has been communicated to the detenu in the language, he understands. 4. Heard learned counsel for the parties and perused the record. 5. The detenu has a valuable right to make a representation at the earliest against his order of detention in terms of Article 22(5) of the Constitution of India and Section 13 of the Public Safety Act. It was thus incumbent upon the Detaining Authority to inform the detenu right to make a representation to the Detaining Authority till the order of detention was approved. This non-communication of his right to make representation before the Detaining Authority has resulted in infraction of his constitutional right and, therefore, vitiate the detention. 6. The Hon’ble Division Bench, while considering a similar issue in Tariq Ahmad Dar V. State of J&K and others, 2017 (II) SLJ 665 (HC) and relying on the judgment of the Constitutional Bench in Kamlesh Kumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51 , has held as under:- “…….. This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed.” From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can made a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.” The detenu had a right to move a representation from the date of execution of the order and between the date of execution. This opportunity has not been provided to the detenu as the Detaining Authority has failed to mention in the detention order about the petitioner’s right to make his representation before the same. 7. It is averred that there is no application of mind by the Detaining Authority as the grounds of detention are reproduction of the dossier and the order of detention has been passed without applying his mind to the same. This shows complete non-application of mind by the Detaining Authority, while exercising powers under Section 8 of the J&K Public Safety Act. The Apex Court in Jai Singh and ors. Vs. State of Jammu & Kashmir, AIR 1985 SC 764 has held as under:- “………..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 greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.” 8. Perusal of the record reveals that the sum and substances of 06 paras of the dossier and the grounds of detention are same. Wherever the word ‘subject’ is used in the dossier is replaced by ‘you’ and you in the grounds of detention and this reflects total non-application of mind by the Detaining Authority. 9. The detenu understands and has knowledge of only Urdu and Kashmiri languages yet the translated copies of the material relied upon has not been provided to him. 10. 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.” 11. 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 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”. 12. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed, the impugned detention order No. DMB/PSA/73 of 2019 dated 14.09.2019 in terms whereof detained detenu-Mohammad Amin Allaie S/o Wali Mohammad Allaie is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 13. Let the detention record be returned back to learned counsel for the respondents by the Registry forthwith.