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2020 DIGILAW 541 (JK)

Asrar Ahamd Lone v. UT of J&K

2020-10-16

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—The present Habeas Corpus Petition has been filed by the detenu-Asrar Ahamd Lone S/o Nazir Ahmad Lone R/o Hadipora Rafiabad, District Baramulla, through his father Nazir Ahmad Lone challenging his order of detention No. 82/DMB/PSA/2019 dated 31.12.2019 passed by the District Magistrate, Baramulla, detaining him under section 8(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 security of the state. 2. The order of detention has been assailed by the detenu on the grounds that (i) the same has been passed in violation of the constitutional and statutory safeguards as provided to him under Article 22(5) of the Constitution of India and under section 13 of Jammu and Kashmir Public Safety Act, 1978; (ii) there is more than 20 days’ delay in execution of the order dated 31.12.2019 as the same was executed on 24.01.2020, thus, the detention is vitiated and the delay in execution of the detention order has deprived the detenu of his right to make an effective representation to the Detaining Authority which has resulted in an infraction of the rights as guaranteed to the detenu; (iii) all the material relied upon by the Detaining Authority, while passing the order of detention has not been supplied to the detenu; (iv) the Detaining Authority has not prepared the grounds of detention itself, thus, the detention is bad. 3. Mr. Asif Maqbool, learned Deputy Advocate General has filed counter affidavit as well as produced the detention record. 4. It is submitted by him that the detenu was detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978 validly by virtue of detention order dated 31.12.2019 issued by the District Magistrate, Baramulla. Detaining Authority has fulfilled all the statutory requirements and constitutional guarantees as provided to the detenu. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been communicated to the detenu and he was also informed of his right to make an effective representation against the order of detention. Detaining Authority has fulfilled all the statutory requirements and constitutional guarantees as provided to the detenu. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been communicated to the detenu and he was also informed of his right to make an effective representation against the order of detention. The case of the detenu was referred to the Advisory Board for its opinion and the Advisory Board after considering the material placed before it has held that there is sufficient cause for detention of the detenu, thus, after the opinion, the Government confirmed the order of detention. 5. Heard learned counsel for the parties and perused the record also. 6. It appears from the grounds of detention that the detenu was arrested in FIR No. 114/2019 of Police Station, Dangiwacha and was already in custody. The Detaining Authority while considering the material placed before it had arrived at its requisite subjective satisfaction and was of the opinion that there was every likelihood of detenu being admitted to bail in the aforesaid FIR and on the basis of report received, he may again indulge in alleged activities, however, even after considering such apprehension, the Detaining Authority failed to execute the impugned order of detention and the same was executed after a delay of more than 20 day, that is, on 24.01.2020. There is no explanation tendered for the delay of more than twenty days in execution of the detention order and this casts a shadow of doubt on the necessity of passing of the order of detention as the same has rendered its purpose irrelevant. 7. The Hon’ble Apex Court, while considering a similar proposition in Manju Ramesh Nahar V. Union of India and others, AIR 1999 SC 2622 , where there was a delay of more than five months in executing the order, has held as under; “8. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the “satisfaction” of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.” 8. In A. Mohammed Farook vs. Jt. In A. Mohammed Farook vs. Jt. Secy. To G.O.I. and ors, (2000) 2 SCC 360 , the Hon’ble Apex court has held that: “the only contention before the Court was that of delay in executing the order of detention. In that case, the detention order was passed on 25.02.1999 but the authorities have chosen to execute the detention order only on 06.04.1999 after an inordinate and unreasonable delay of nearly 40 days. In the absence of proper and acceptable reasons for the delay of 40 days in executing the detention order, this Court concluded that the subjective satisfaction of the Detaining Authority in issuing the detention order dated 25.02.1999 gets vitiated and on this ground quashed the same.” 9. Similarly, in K. P. M. Basheer V. State of Karnataka and another, AIR 1992 SC 1353 , the Hon’ble Apex court has held that: “…Under these circumstances, we are of the view that the order of detention cannot be sustained since the ‘live and proximate link’ between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in security the appellant/detenue and detaining him…” The Detaining Authority, despite observing in the grounds of detention that in case detenu was not put in preventive detention, he might again indulge in the alleged activities but did not execute the order to the detenu timely. This inordinate delay in executing the detention order vitiates the same. 10. It is also averred in the petition that all the material relied upon by the Detaining Authority has not been provided to the detenu as the detention order itself reveals that the same has been issued after considering all the material provided by the SSP concerned such as dossier and other connected material. The impugned order of detention dated 31.12.2019 reads as under: “Whereas, Sr. Superintendent of Police Sopore vide his No. PROSS/PSA-/2019/42210 dated 24.12.2019 has produced material record, such as dossier and other connected documents viz copy of FIR No. 114/2019, Seizure memo, Arrest memo, Statements U/S 161 CrPC in respect of Asrar Ahmad Lone S/o Nazir Ahmad Lone R/o Hadipora Rafiabad, District Baramulla. Whereas, I District Magistrate Baramulla have perused the contents and recommendations mentioned in the dossier carefully, produced before me in respect of the said person.” 11. Whereas, I District Magistrate Baramulla have perused the contents and recommendations mentioned in the dossier carefully, produced before me in respect of the said person.” 11. Perusal of the record also reveals that in terms of the execution report, detenu has been provided the contents of PSA warrant, notice one leaf, grounds of detention two leaves and copy of FIR one leaf in total (five leaves) were read over and explained to the detenu in Urdu/Kashmiri languages. Thus, all the material including the copy of FIR No. 114/2019, and other material relied upon by the Detaining Authority, while passing the order of detention has not been provided to the detenu, this has resulted in an infraction of the Constitutional and statutory rights available to the detenu to make an effective representation before it as well as to the Government. 12. Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicated to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention. This right to make a representation can only be exercised by the detenu provided all the material relied upon, while passing the order of detention are provided to be detenu. In order to make an effective representation, the detenu must know the fact of what weighed in the mind of the Detaining Authority for passing the impugned order of detention. 13. In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, AIR 1999 SC 3051 , the Apex Court observed as under:- “… The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language…..” 14. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language…..” 14. In Icchu Devi Choraria (Smt.) v. Union of India and others, (1980) 4 SCC 531 , the Supreme Court dealt with in great the significance of clause (5) of Article 22 and sub-section 3 of Section 3 of COFEPOSA Act. The Apex court observed as under: “Now it is obvious that when Clause (5) of Article 22 and Subsection (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated, in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.” 15. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. 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 detention order No. 82/DMB/PSA/2019 dated 31.12.2019 passed by the District Magistrate, Baramulla, under which detenu-Asrar Ahamd Lone S/o Nazir Ahmad Lone is under detention, 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. Detention record be returned to learned counsel for the respondents by the Registry forthwith.