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2020 DIGILAW 548 (JK)

Tanveer Ahmad v. Union Territory of J&K

2020-10-22

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—By the instant petition, quashment of order No.201/DMK of 2019 dated 27.05.2019, issued by District Magistrate, Kishtwar (for brevity “Detaining Authority”) is sought. In terms of the aforesaid order, Tanveer Ahmad son of Ghulam Qadir Ginoo resident of Village Tundar Tehsil Dachhan District Kishtwar (for short “detenu”) has been placed under preventive detention and lodged in District Jail, Kathua. 2. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The respondents have produced the detention records in order to buttress the contentions raised in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds: (I) That the grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while formulating the grounds of detention which is a pre-requisite for passing an order of detention; (II) That the detaining authority has depicted total non-application of mind and casual approach while passing the order of detention because the detaining authority has, in the order of detention, mentioned that the detenue be detained for maximum period when the District Magistrate, who passed the order of detention, was not empowered to fix the period of detention and the same is the domain of the Government. (III) That the detenue’s right of making an effective representation against his detention has been violated as the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him. (IV) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of public order. 6. Per contra, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 7. While going through the detention records, as produced, the first ground projected by the learned counsel for the petitioner gets support from the material on record. The grounds of detention are replica of dossier with interplay of some words here and there, which exhibits non-application of mind on the part of detaining authority. In the process, the deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the police dossier. In my aforesaid view, I am supported by the judgment of the Supreme Court in the case of Jai Singh and ors vs. State of J&K ( AIR 1985 SC 764 ). 8. The grounds of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. The similarity of contents of grounds of detention and police dossier in the instant case clearly exhibits mechanical functioning of the detaining authority, thereby making the impugned order of detention unsustainable in law. 9. The similarity of contents of grounds of detention and police dossier in the instant case clearly exhibits mechanical functioning of the detaining authority, thereby making the impugned order of detention unsustainable in law. 9. Next it is contended by learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as the material, which formed base of the grounds of detention and the consequent order of detention, has not been furnished to him. 10. In the instant case, the petitioner has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The Supreme Court in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318 , while interpreting Article 22(5) of the Constitution, observed that furnishing of grounds of detention means material sufficient to enable the petitioner to make an effective representation. 11. In Shalini Soni v. Union of India, (1980) 4 SC 544, the Supreme Court has observed that ‘grounds’ in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which led to such factual inferences. The Court further clarified that copies of the documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds. 12. Thus, the detaining authority is required to communicate to the detenue, (i) grounds of detention; (ii) all the documents referred to in the grounds of detention; (iii) all the documents and materials which the detaining authority considers while framing his subjective satisfaction; (iv) detention order and also the police report or dossier if any. The word ‘grounds’ used in clause (5) of Article 22 of the Constitution means not only the narrations or conclusions of facts, but also all materials on which those facts or conclusions which constitute grounds are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation. The detaining authority is obliged to mention in the grounds as to on which material he based his satisfaction, failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. The detaining authority is obliged to mention in the grounds as to on which material he based his satisfaction, failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. For this, support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241. 13. Detention record, as produced by learned counsel for the respondents, contains a copy of the Execution Report dated 28.05.2019, perusal of which reveals that 04 leaves consisting of copy of detention order, letter addressed to the detenue and the copy of grounds of detention have been provided to the detenue, in token whereof his signatures have been obtained on the said Execution Report. The receipt does not show anything to even suggest that any other document/material has been furnished to the detenue. This strengthens the contention of the petitioner that the material on which the grounds of detention are based, have not been supplied to the petitioner. Furnishing of copy of the grounds of detention would not absolve the detaining authority of its duty to furnish the material forming base of the grounds of detention. It is this material which would have enabled the petitioner to make an effective representation against the detention. Non-supply of the material would amount to violation of right of detenue under Article 22 (5) of the Constitution of India and its deprivation renders the detention order unsustainable in law. In my aforesaid view, I am fortified by the judgments of the Supreme Court rendered in the cases of Sophia Gulam Mohd. Bham v. State of Maharashtra & ors ( AIR 1999 SC 3051 ), Thahira Haris etc. Vs. Government of Karnataka & Ors ( AIR 2009 SC 2184 ) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others (1982) 3 SCC 440 . 14. As already noted, in the instant case the record shows that the petitioner has not been furnished the material which formed the basis of the grounds of detention. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others (1982) 3 SCC 440 . 14. As already noted, in the instant case the record shows that the petitioner has not been furnished the material which formed the basis of the grounds of detention. Neither the copies of the FIRs nor the statements of the witnesses recorded during the investigation of these FIRs which find mention in the grounds of detention have been furnished to the petitioner. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 15. Learned counsel for the petitioner has also contended that the detaining authority has depicted total casual approach and non-application of mind while making the order of detention as the detaining authority has, in the order of detention, mentioned that the detenue be detained for maximum period, though the District Magistrate, who passed the order of detention, was not empowered to fix the period of detention as the same is the domain of the Government. 16. Fixing of period of detention is wholly and solely domain of the Government and the District Magistrate has no power in this regard. I am supported in my aforesaid view by the ratio laid down by the Supreme Court in the case of Makhan Singh Tarasika Vs. State of Punjab (AIR (39) 1952 SC 27), wherein it has been held as under: - “The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11(2) that if the Advisory Board reports that there is no sufficient cause for the detention, the person concerned would be released forthwith, the direction in the order dated 30.7.1951 that the petitioner should be detained till 31.3.1951 could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner’s case when it is placed before the Advisory Board. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner’s case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. 17. It has been further contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the maintenance of public order. 18. A perusal of the grounds of detention reveals that the incidents referred therein pertain to the year 2012 and 2015, that is more than four years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. 19. The Supreme Court in the case of Sama Aruna v. State of Telengana and & anr, (2018) 12 SCC 150 , while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under: “17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.” From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of public order. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained. 20. Viewed thus, the petition is allowed and the impugned order of detention bearing No.201/DM/K of 2019dated 27.05.2019, issued by respondent No.2-District Magistrate, Kishtwar, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 21. The record, as produced, be returned to the learned counsel for the respondents.