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2020 DIGILAW 554 (JK)

Mohammad Umar Mir v. UT of J&K

2020-10-23

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—The present Habeas Corpus Petition has been field by the detenu challenging the order of detention bearing No. 78/DMB/PSA/2019 dated 30.10.2019 passed by District Magistrate, Baramulla detaining Mohammad Umar Mir @ Umar Jan S/o Gh. Mohamad Mir R/o Mir Mohalla Brath Kallan, District Baramulla under clause (a) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from acting in any manner in activities which were prejudicial to the security of the state. This order of detention is challenged by the detenu through his brother. 2. The order of detention has been questioned by the detenu on the ground that; (i) he was already in custody in FIR No. 33/2019 under section 307 RPC, 7/27 Arms Act at Police Station, Bomai but the Detaining Authority has detained the detenu in preventive detention without giving any cogent or compelling reason for his detention; (ii) all the material relied upon by the Detaining Authority while passing the order of detention has not been communicated to the detenu, thus, he was prevented from making an effective representation;(iii) the order of detention has been passed by the District Magistrate on the basis of record furnished by SSP, Sopore, there is a total non-application of mind by the Detaining Authority as he has not prepared the grounds of detention himself rather than they are a verbatim copy of the police dossier; (iv) the detenu is Semi Literate, labour by profession and is not involved in stone pelting activities; and (v) The Detaining Authority has not followed the mandate of Article 22(5) of the constitution and section 13 of the Public Safety Act, thus, prevented the detenu from making an effective representation. (vi) the grounds of detention are vague and non-existent in the eyes of law and, as such, deserves to be quashed. 3. Mr. Asif Maqbool, learned Dy. AG have filed counter affidavit as well as produced the record. He submits that the detenu was detained for his activities which were considered to be prejudicial to the security of the state. He was detained validly by virtue of detention order bearing No. 78/DMB/PSA/2019 dated 30.10.2019 passed by the District Magistrate, Baramulla. All the procedural safeguards and constitutional guarantees were complied with by the Detaining Authority. The order of detention was issued after arriving at its requisite subjective satisfaction that his detention was imperative. He was detained validly by virtue of detention order bearing No. 78/DMB/PSA/2019 dated 30.10.2019 passed by the District Magistrate, Baramulla. All the procedural safeguards and constitutional guarantees were complied with by the Detaining Authority. The order of detention was issued after arriving at its requisite subjective satisfaction that his detention was imperative. All the material relied upon by the Detaining Authority was communicated to the detenu in the language he understands. The case of the petitioner was also referred to the Advisory Board for its opinion, and the Board vide its opinion dated 25.11.2019 found that there was a sufficient cause for the detention of the detenu. Pursuant to the opinion of the Board, the Government has vide Order No. Home/PB-V/264 of 2019 dated 04.12.2019 confirmed the order of detention. 4. Heard learned counsel for the parties and perused the record. 5. The detenu has alleged breach of Article-22(5) of the Constitution of India. Article 22(5) of the Constitution of India reads as under:- “When any person is detained in pursuant of an order made under any law providing for preventive detention, the Authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and afford him an earliest opportunity of making a representation against the order, therefore, it casts a duty upon the Detaining Authority to communicate to the detenu the grounds on which the order is made and a corresponding right arising in him of making such representation against his detention.” 6. The Detaining Authority has also been vested with the powers to revoke the detention order, therefore, before the order of the detenu is confirmed by the Government, a representation of the same could be made to the Detaining Authority for revocation of the detention order. Thus, it was incumbent upon the Detaining Authority to communicate to the detenu his right to make a representation to the Detaining Authority. Since the Detaining Authority failed to communicate the same, therefore, the same would amount in an infraction of Section 13 of the Public Safety Act read with Article-22(5) of the Constitution. 7. Thus, it was incumbent upon the Detaining Authority to communicate to the detenu his right to make a representation to the Detaining Authority. Since the Detaining Authority failed to communicate the same, therefore, the same would amount in an infraction of Section 13 of the Public Safety Act read with Article-22(5) of the Constitution. 7. 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. 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.” 8. The detenu had a right to move a representation from the date of execution of the order and between the date of confirmation. The Detaining Authority has failed to mention in the detention order about the detenu’s right to make his representation before it. This has resulted in an infraction of a valid constitutional right guaranteed to him. 9. The detenu had a right to move a representation from the date of execution of the order and between the date of confirmation. The Detaining Authority has failed to mention in the detention order about the detenu’s right to make his representation before it. This has resulted in an infraction of a valid constitutional right guaranteed to him. 9. This apart, it is submitted that the detenu was already in custody and the impugned order of detention was passed without giving any cogent and compelling reason for the same, therefore, the detention of the detenu is unjustified. The Apex Court while considering similar proposition in Sama Aruna vs. State of Telangana and another, 2018 (12) SCC 150 has held as under:- “27. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows : “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 10. A Division Bench of this Court, while considering a similar proposition in Farooq Ahmad Sheikh vs. State and others, 2017 SLJ (II) 681, has held that: “13. Testing the instant case on the touch stone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the JKPSA, when he was already in the custody of the police authorities. Testing the instant case on the touch stone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the JKPSA, when he was already in the custody of the police authorities. His custody in police for the offences stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against zealously by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to assail the order(s) in the higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land.” 11. In view of the settled proposition of law as stated above which squarely applied to the present case, the detention of the detenu is unjustified. In view of the aforesaid, it is not necessary to advert to other grounds taken in the petition. For the aforesaid reasons, this petition is allowed and impugned detention order No. 78/DMB/PSA/19 dated 30.10.2019 passed by District Magistrate, Baramulla is quashed. Accordingly, the respondents are directed to release the detenu Mohammad Umar Mir @ Umar Jan S/o Gh. Mohamad Mir from the custody forthwith, if he is not required in any other case. 12. Detention record be handed over to learned counsel for the respondents by the Registry forthwith.