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2022 DIGILAW 21 (JK)

Jehangir Ahmad Bhat v. Union Territory of J&K

2022-02-04

MOHD.AKRAM CHOWDHARY

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JUDGMENT : Mohd. Akram Chowdhary, J.-Respondent No.2 namely District Magistrate, Pulwama, in exercise of powers conferred on him under Section 8 of the J&K Public Safety Act, 1978, has passed the detention Order No. 18/DMP/PSA/21 dated 23.04.2021 (for short impugned order), in terms whereof the detenue namely Jehangir Ahmad Bhat has been detained. The said detention order is being challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13 of the J&K Public Safety Act, 1978. 2. It is being pleaded in the petition that the detaining authority-respondent No.2 has not attributed any specific allegation against the detenue. Furthermore, it is stated that the detenue has been incapacitated in filing a representation as the grounds of detention are not in a language which could be understood by the detenue. It is being also stated that the detenue is not an English literate person and understands only Kashmiri/Urdu language but the order of detention is in English and it is not possible for him to understand such a hyper technical language. It is also the submission of learned counsel for the detenue that the order of detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India. 3. Respondents in their counter affidavit have stated that the detenue was ordered to be detained for maintenance of ‘public order’ and if he would be let free there will be every likelihood of his re-indulging in subversive activists and will continue to instigate the youth of the area to indulge in such activities. 4. Heard and considered. 5. Learned counsel for the detenue while being heard makes reference to the grounds of the detention and states that on a cursory look on the same it is manifest that same are vague. It is nowhere stated in the grounds of detention as to who were the youth whom the detenue had instigated for indulging in subversive activities. The particulars of youth whom the detenue has lured to indulge in subversive activities, as alleged, is also not mentioned in the grounds of detention. In addition, learned counsel submitted that the allegations levelled against the detenue are totally vague as nothing specific has been stated in the grounds of detention. 6. The particulars of youth whom the detenue has lured to indulge in subversive activities, as alleged, is also not mentioned in the grounds of detention. In addition, learned counsel submitted that the allegations levelled against the detenue are totally vague as nothing specific has been stated in the grounds of detention. 6. In rebuttal, learned Dy. AG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention. 7. Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. Hon’ble Apex Court in a case titled Abdul Latif Abdul Wahad Sheikh Vs. B.K. Jha, reported as (1987) 2 SCC 22 , has held that the procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. 8. The detention record, as produced, reveals that the detenue was involved in a case registered vide FIR No. 40/2021 under Sections 147, 148, 149, 341 and 307 IPC, at Police Station, Pampore. Involvement of the detenue in the aforementioned case appears to have heavily weighed with the detaining authority while passing detention order. The requirement of law is that whole of the record, on which the detention order is based, has to be made available to the detenue in the language that he understands. The detenue herein is said to be 9th pass and as per the execution report, he has been furnished copies of detention order, notice of detention and grounds of detention, total four leaves. He has neither been provided with a copy of dossier of detention, copies of FIR, statements of witnesses nor any other related document. The detenue herein is said to be 9th pass and as per the execution report, he has been furnished copies of detention order, notice of detention and grounds of detention, total four leaves. He has neither been provided with a copy of dossier of detention, copies of FIR, statements of witnesses nor any other related document. This means that he was not provided with whole of the record, which based his detention. It is also very strange to note that as per the execution report, the detenue had been explained the grounds of detention in Hindi/Dogri language, whereas the 9th pass rustic villager from Kashmir hardly understands both these languages. The detenue, thus, cannot be said to be provided or informed any of the related documents, so as to make an effective representation. The detention order also does not indicate with regard to the right of making representation. The failure on the part of the detaining authority to supply material renders detention illegal and unsustainable. In my view, I am fortified by the judgments rendered by the Hon’ble Supreme Court in a case titled Chaju Ram Vs. The State of Jammu & Kashmir, reported as AIR 1971 SC 263 . Following portion from Para-9 of the judgment shall be apt to quote herein:- “……. The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.” 9. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.” 9. It shall also be quite apposite to reproduce the following portions from Paras 3 and 5 of the judgment rendered by Hon’ble Supreme Court in the case titled “Smt. Raziya Umar Bakshi Vs. Union of India” ( AIR 1980 SC 1751 ): “3………The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie. 5……..in case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language he understands.” 10. The Hon’ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. ( AIR 1999 SC 3051 ), has held 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 detenue 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 to the detenue 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.” 11. Another argument raised by learned counsel for the petitioner that since the detenue was in the custody of the police at the time of passing of the detention order, therefore, the question that arises for consideration is whether an order of detention could be passed on the face of such an eventuality, the answer has to be in negative. Another argument raised by learned counsel for the petitioner that since the detenue was in the custody of the police at the time of passing of the detention order, therefore, the question that arises for consideration is whether an order of detention could be passed on the face of such an eventuality, the answer has to be in negative. The law on the subject has been laid down by the Hon’ble Apex Court in Sama Aruna V. State of Telangana & Anr. ( AIR 2017 SC 2662 ). Para 24 of the judgment reads as :- “24. 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 2002-2003. 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.” 12. On the touchstone of the law laid down above, the detenue in the present case could not have been detained after taking recourse to the provisions of the Public Safety Act, when he was already in the custody of the police in the above referred case, therefore, in view of the facts of the case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the impugned order of detention, does not sustain on the aforesaid grounds. 13. 13. Vide impugned order, the Detaining Authority has not communicated to the detenue the time limit, in which, he could make a representation to him, till approval of the detention order by the Government. In a case of National Security Act, titled Jitendra Vs. Dist. Magistrate, Barabanki & Ors., reported as 2004 Cri.L.J. 2967, the Division Bench of Hon’ble Allahabad High Court, has held:- “10. We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the first fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be, the grounds of detention.” 14. This is another reason, as to why the impugned order would be vitiated since the detenue’s right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e., till the approval of the detention order by the State Government. 15. For the foregoing reasons and the law laid down as above, this petition is allowed. Impugned order of detention No.18/DMP/PSA/21 dated 23.04.2021 passed by District Magistrate, Pulwama, is, as such, quashed. The detenue namely Jehangir Ahmad Bhat S/O Ghulam Rasool Bhat R/O Kumar Mohalla, Samboora, Pampore, District Pulwama, be released from the preventive custody forthwith provided he is not required in connection with any other case/s. 16. Detention record, as produced, be returned to learned Dy. AG. 17. Disposed of, accordingly.