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2022 DIGILAW 275 (JK)

Muzamil Ahmad Dar v. UT of J&K

2022-05-26

ALI MOHAMMAD MAGREY, PUNEET GUPTA

body2022
JUDGMENT 1. The present appeal has been preferred by the detenu, Muzamil Ahmad Dar, through his father, Ab. Rashid Dar, against the judgment dated 16.02.2022, delivered by a Single Bench of this Court in WP Crl No. 267/2021 in which the detention order No. 87/DMS/PSA/2021 dated 18.10.2021, issued by the District Magistrate, Shopian, was challenged. By virtue of the said detention order, the appellant/detenu was placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978. The said appellant/detenu was ordered to be lodged at District Jail, Rajouri. 2. In the dossier it is alleged that the detenu came into contact with the militants and used to work as OGW of Let/TRF outfits and also motivated the youth of his area for indulging in anti-national and anti-social activities and he (detenu) is the key motivator always motivates the youth to indulge in militancy. It further reveals that the detenu is a hard core over ground worker (OGW) sympathizer and a promoter of TRF terrorist outfit in Valley. 3. The learned counsel for the appellant-detenu has raised primarily three issues before the court questioning the validity of the detention. The first point taken by the learned counsel for the petitioner is that the detention order was passed when there was no FIR registered against the detenu, the detention order was passed on the so called allegations levelled against the detenu, that he was indulging in motivating the youth to join the militancy. In these circumstances, it was submitted by the learned counsel for the appellant-detenu, the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of appellant-detenu to indulge in anti-national activities that it was necessary to detain the detenu in order to prevent him from indulging in such acts. According to the learned counsel for the appellant-detenu, there is no such satisfaction recorded in the grounds of detention. 4. The second point taken by the learned counsel for the appellant-detenu was that non-supply of relevant material/ documents also vitiated the detention order. In this context, it was the case of the appellant-detenu that no documents at all were supplied to the appellant/detenu. 4. The second point taken by the learned counsel for the appellant-detenu was that non-supply of relevant material/ documents also vitiated the detention order. In this context, it was the case of the appellant-detenu that no documents at all were supplied to the appellant/detenu. The non-supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention and that in itself would be a ground to declare the detention order void, though the appellant-detenu submitted the representation before the competent authority but that was not decided by the authority till date. This right flows from the Constitution of India. In support, he referred to the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra: AIR 1999 SC 3051 . 5. The third and important point raised by the learned counsel for the appellant-detenu was based on the provisions of Section 13 of the J&K Public Safety Act, 1978, which require that the grounds of detention should have been communicated to the detenu in the language which was understandable to him and that he should be afforded the earliest opportunity of making a representation against the order to the Government. According to him, the detenu only understood Kashmiri language and the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri were provided to him. This seriously prejudiced his right to make an effective representation and on this ground also the detention order would vitiate the detention. Though the detenu has filed representation, but that was neither considered nor rejected. In support of his argument, learned counsel for the appellant has referred to and relied upon case titled “Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 ”; the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as under: “Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ‘grounds’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.” 6. On the other hand, Mr. Asif Maqbool, GA, defended the impugned detention and he responded to each of the points. With regard to the first point he submitted that there is a mention in the grounds of detention about the arrest of the detenu with reference to the anti-national activities and indulging himself motivating the youth for joining the militancy for disrupting the law and order situation in the Valley. Therefore, according to him, the detaining authority was aware of the fact that the detenu was already indulging to motivate the youth for involving them in the anti-national activities when the detention order was passed. He, therefore, submitted that the point raised by the learned counsel for the appellant-detenu on this score was untenable. 7. With regard to the plea of non-supply of material/ documents, Mr. Asif Maqbool, learned GA, placed before us the record pertaining to the detention. Ongoing through the same, we find that detenu has not been furnished all the documents referred in the grounds of detention. 8. Based upon the said receipt, Mr. Asif Maqbool GA submits that the grounds of detention had been supplied along with other relevant documents and, therefore, the appellant cannot make any grievance on this ground. He has referred to and relied upon the Judgment(s) reported as (1986) I Supreme Court Cases 404 titled Shiv Ratan Makim vs. Union of India and AIR 2001 Supreme Court 301 titled R. Keshava vs. M. B. Prakash and Ors. 9. He has referred to and relied upon the Judgment(s) reported as (1986) I Supreme Court Cases 404 titled Shiv Ratan Makim vs. Union of India and AIR 2001 Supreme Court 301 titled R. Keshava vs. M. B. Prakash and Ors. 9. In so far as the point of supply of translated copies of grounds of detention in Kashmiri language is concerned, the learned GA, submitted that there was no need to supply translated copies of grounds of detention in Kashmiri language as grounds of detention had been communicated in the language understandable to the detenu. 10. We have heard learned counsel for the parties, perused the record and considered the matter. 11. We shall take up the first point with regard to the ground of satisfaction that has to be recorded by the detaining authority in case the detenu was indulged in motivating the youth to joint militancy as there is no FIR registered against the detenu which would compel the detaining authority to pass the detention order. In this context we need to refer to the decision of the Supreme Court in Surya Prakash Sharma (supra). The relevant paras are extracted herein below: “. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words: The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority’s awareness of the fact that the detenu was in custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail “he may again indulge in serious offences causing threat to public order”. (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. On the conclusions as above we quash the order of detention.” 12. From the above decision, it is evident that for an order of detention to be valid in respect of a person in custody, it is necessary that the grounds of detention must show that; (i) the detaining authority was aware of the fact that the detenu is already in custody; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression ‘compelling reasons’ has also been explained by the Supreme Court as signifying that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the activities of the detenu, that he is indulged in the activities to motivate the youth to join the militancy, it is likely that after his release from custody he would indulge in such activities and that it was necessary to detain him in order to prevent him from engaging in such activities. 13. In the present case we find that although there is mention of the fact that the detenu had been arrested on the allegations that he is motivating the youth to join militancy but, it is not clear as to whether the detaining authority was aware of the fact that the detenu continued to be already in custody or arrested. Furthermore, assume that the detaining authority was aware that the detenu was in custody in connection with the so-called allegations, the compelling reasons, referred to above, have not been indicated in the grounds of detention. In other words, the grounds of detention nowhere make a mention or indicate satisfaction that the detenu was being likely to be released from custody in near future. Therefore, in view of the decision of the Supreme Court in Surya Prakash Sharma, this alone would vitiate the detention order. 14. Now move to the second point which pertains to the non-supply of relevant material in order that the detenu could make an effective representation against his detention. According to the learned counsel for the appellant-detenu, the detenu has submitted the representation before the competent authority, but that was still pending for consideration before the authority, reasons best known by the authority. Neither the representation was rejected nor any result was conveyed to the detenu. Therefore, on this count also would vitiate the detention order. 15. The third point which was urged by the learned counsel for the appellant was that translated copies of the detention order/ grounds of detention were not supplied and this can itself invalidate the detention of the detenu. Therefore, on this count also would vitiate the detention order. 15. The third point which was urged by the learned counsel for the appellant was that translated copies of the detention order/ grounds of detention were not supplied and this can itself invalidate the detention of the detenu. Reliance was placed on the decision of the Supreme Court in the case of Razia Umar Bakshi v. Union of India and others: AIR 1980 SC 1751 . In that decision, the Supreme Court had observed that 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 detenu, 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 detenu in the language which he understands. In the present case, it is an admitted fact that the grounds of detention in Kashmiri language which is the language which the petitioner understood was not furnished to him. That being the case, this is yet another ground for invalidating the detention order. 16. We may refer to Judgment of Apex Court in case Ibrahim Ahmad Batti V. State of Gujarat, (1982) 3 SCC 440 , the Apex Court, relying on its earlier Judgments in Khudiram Das v. State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 . 16. We may refer to Judgment of Apex Court in case Ibrahim Ahmad Batti V. State of Gujarat, (1982) 3 SCC 440 , the Apex Court, relying on its earlier Judgments in Khudiram Das v. State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 . Para 10 of the Judgment being relevant is extracted as under:- “ Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b)all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution.” 17. In Khudiram case (supra), the Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). 18. In Smt. Icchu Deve Case (Supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised. Though the detenu has already submitted the representation before the authority, but same neither has been considered or rejected. 19. We have also considered the submissions of Mr. Though the detenu has already submitted the representation before the authority, but same neither has been considered or rejected. 19. We have also considered the submissions of Mr. Asif Maqbool, learned GA, in so far as non-supply of complete material is concerned. As per the constitutional and statutory mandate, the detaining authority is under obligation to supply the material/documents forming the basis for detention of the detenu. 20. For all these reasons, the impugned judgment dated 16.02.2022 passed by the learned Single Judge in WP Crl No. 267/2021 is set-aside and the detention order No. 87/DMS/PSA/2021 dated 18.10.2021 is quashed. The appellant/detenu namely Muzamil Ahmad Dar s/o Ab. Rashid Dar r/o Ray-Kaprin, Tehsil Shopian, District Shopian, is directed to be released forthwith, if he is not, otherwise in custody in connection with some other case(s).