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2020 DIGILAW 538 (JK)

Abdul Ahad Dar v. State of J&K

2020-10-15

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—This Habeas Corpus Petition has been filed against the detention order No. 20/DMB/PSA/2019 dated 06.08.2019 passed by the District Magistrate, Baramulla detaining Abdul Ahad Dar @ Ahad Molvi S/o Ghulam Mohammad Dar R/o Dar Mohalla Palhallan Pattan, District Baramulla under section 8, clause (a) of the Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner in the activities which were prejudicial to the maintenance of the security of the state. This order of detention has been assailed by the detenu through his wife. 2. The detenu has challenged the order of detention amongst others on the grounds that; (i) the allegations reflected in the grounds of detention are vague and mere assertions against which no effective representation can be made; (ii) the detention order has been passed after a delay of more than ten months from the date of alleged activities, thus, there is no live and proximate link between the impugned order of detention and the alleged activities, as such, the detention is vitiated; (iii) the detenu was already enlarged on bail in cases mentioned in the grounds of detention, however, the Detaining Authority has not shown any awareness to the same, while passing the order of detention; (iv) all the material relied upon by the Detaining authority has not been furnished to the detenu which renders the detention un-sustainable; (v) the detenu was earlier also detained vide detention order No. 101/DMB/PSA/2018 dated 24.11.2018 which was questioned by him in HCP No. 461/2018 and vide order dated 29.05.2019, this detention was quashed; (iv) the grounds of detention in the present case have not been prepared by the Detaining Authority itself rather these are mere copy of the police dossier, therefore, there is total non-application of mind on the part of the Detaining Authority, while passing the order of detention; (v) the detenu has not been informed of his right to make representation against his order of detention to the Detaining Authority, this has resulted in an infraction of his right to make an effective representation; and (vi) the grounds of detention has neither been explained to detenu in the language he understands nor the translated copies of the same have been provided to him, thus, he was prevented from making any effective representation. 3. Respondents have filed the counter affidavit as well as produced the record. 4. 3. Respondents have filed the counter affidavit as well as produced the record. 4. Mr. Asif Maqbool, learned Deputy Advocate General submits that the detenu was detained under the provisions of Public Safety Act validly and legally by virtue of detention order No. 20/DMB/PSA/2019 dated 06.08.2019 passed by the District Magistrate, Baramulla. All the procedural safeguards and constitutional guarantees were duly complied with by the Detaining Authority. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority have been provided to the detenu within the statutory period. In compliance to the District Magistrate’s order, the warrant was executed by the Executing Officer-Ghulam Mohi-ud-din, SI No. 161/B. The contents of the detention order as well as grounds of detention were read over and explained to the detenu in the language he understood. The case of the detenu was referred to the Advisory Board for its opinion and the Advisory Board under section 16 of the Public Safety Act, after considering all the material placed before it, has held that there is sufficient cause for detention of the detenu and thereafter Government confirmed the order of detention issued against the detenu. 5. Heard learned counsel for the parties and perused the record. 6. It is contended that though the detenu was earlier arrested in FIR and subsequently he enlarged on bail in FIR Nos. 144/2016 on 27.06.2019, 275/2016 on 03.07.2019 and in 213/2016 on 09.07.2019, however, this important fact has not been noticed by the Detaining Authority, while passing the order of detention. The grounds of detention do not mention that the detenu was granted bail in the above aforementioned FIRs. This reflects a total non-application of mind by the Detaining Authority. The Detaining Authority must show its awareness to all the facts of the case before arriving at the requisite subjective satisfaction, while directing the preventive detention of the detenu. 7. The Hon’ble Supreme Court in Khudiram Das vs. State of West Bengal, (1975) 2 SCC 832 has held that where the liberty of the subject is involved it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. The constitutional requirement of Article 22(5) is that all the basic facts and particulars which influenced the Detaining Authority in arriving at the requisite satisfaction leading to making the detention order must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. 8. The Detaining Authority has arrived at its requisite subjective satisfaction, that the detenu was required to be detained in preventive detention and for this, all important facts and circumstances as well as the material on which the satisfaction was arrived was to be considered by it. The Detaining Authority, however, failed to notice and mention that the detenu was granted bail on 27.06.2019, 03.07.2016 and 09.07.2019 in FIRs registered against him, thus, reflects its total non-application of mind and, as such, the detention is not sustainable. 9. The Hon’ble Supreme Court in Anant Sakharam Raut and others V. State of Maharashtra and another, AIR 1987 SC 137 , has held that: “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. 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..……..” 10. 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. 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. The detenu, thus, has to be communicated at the earliest that he has a right to make a representation to the Detaining Authority till the order of detention was approved. As the detenu was not communicated this valuable right of making a representation before the Detaining Authority, this has resulted in an infraction of his valuable right and the detention would be vitiated. 11. In Tariq Ahmad Dar V. State of J&K and others, 2017 (II) SLJ, 665 (HC), this court while 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. 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. 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. 12. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the impugned detention order No. 20/DMB/PSA/2019 dated 06.08.2019 in terms whereof detained detenu-Abdul Ahad Dar @ Ahad Molvi S/o Ghulam Mohammad Dar 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. Detention record be returned back to learned counsel for the respondents by the Registry forthwith.