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2022 DIGILAW 572 (JK)

Javid Ahmad Dar v. U. T. of J&k

2022-10-18

VINOD CHATTERJI KOUL

body2022
JUDGMENT 1. Through the medium of this writ petition, the petitioner prays for quashment of detention Order No.DMB/PSA/29 of 2002 dated 27.06.2022, passed by District Magistrate, Budgam, whereby detenu, namely, Javid Ahmad Dar S/o Gh. Hassan Dar R/o Soznipora Yarikhah, Khansahib, Budgam, has been placed under preventive detention with a view to prevent him from acting in a manner prejudicial to the security of the State, on the grounds made mention of therein. 2. I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents. 3. Learned counsel for the petitioner has stated that the allegations made in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations inasmuch as the cases mentioned in grounds of detention have no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention. He has vehemently argued that grounds of detention are replica of dossier and unequivocally reflects and shows nonapplication of mind on the part of detaining authority and as a consequence of which impugned order of detention is liable to be quashed. He also states that detenu has never associated himself with any terrorist organisation and has also no connection with any terrorist organisation and he has never acted on the directions and signals of any persons whether inside or outside the Union Territory and that the detenu has never provided any logistic support or transported any arms of any person from one place to another and the detenus is not an OGW and is not in touch with any organisation and has not been taking any instruction from any person. It is averred that although representation was made by father of detenu to respondents as also to the Chairman, Advisory Board for releasing the detenu, yet the same was neither considered and decided by respondents nor detenu was produced before the Advisory Board for providing him an opportunity of being heard so that he could explain to the members of the Board that detenu is innocent and his order of detention deserves to be revoked and he be set at liberty. 4. 4. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are prejudicial to the security of the State, and that the activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 5. Taking into account the rival contentions of parties and submissions made by learned counsel for parties, it would be relevant to go through the grounds of detention. Perusal thereof reveals that same are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. The detaining authority even does not have disclosed any activity which would be prejudicial to the security of the State. Detention in preventive custody on the basis of such vague and ambiguous grounds cannot be justified. It may be mentioned here that preventive detention is largely precautionary and is based on suspicion. The Court is ill-equipped to investigate into circumstances of suspicion on which such anticipatory action must be largely based. The nature of the proceeding is incapable of objective assessment. The matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to prevent him from so acting. These are not the matters susceptible of objective determination, and they could not have been intended to be judged by objective standards. They are essentially the matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of detaining authority which, by reason of its special position, experience and expertise, would be best suited to decide them. They are essentially the matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of detaining authority which, by reason of its special position, experience and expertise, would be best suited to decide them. Thus, the Constitutional imperatives of Article 22(5) and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, i.e., to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is nonexistent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. One irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenu in order to prevent him from acting in any manner prejudicial to the maintenance of the public order or security of the State. Reference in this regard is made to Mohd. Yousuf Rather v. State of J&K and others, AIR 1979 SC 1925 ; and Mohd. Yaqoob v. State of J&K &ors, 2008 (2) JKJ 255 [HC]. 6. It is pertinent to mention here that perusal of grounds of detention reveals that the same are replica of dossier with interplay of some words here and there. This, thus, portrays non-application of mind and in the process of deriving of subjective satisfaction, has become causality. While formulating grounds of detention, detaining authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier. Here it will be apt to notice the observations of the Supreme Court in the case of 'Jai Singh and ors vs. State of J&K' ( AIR 1985 SC 764 ), which are reproduced hereunder: 'First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited 'The subject is an important member of ' Thereafter follow various allegations against Jai Singh, paragraph by paragraph. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited 'The subject is an important member of ' Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words 'the subject is' into 'you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi'. Thereafter word for word the police dossier is repeated and the word 'he' wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.' 7. From above settled position of law, it is crystal clear that grounds of detention and dossier, if in similar language, go on to show that there has been non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non- application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone. 8. Another submission that has been strenuously urged by learned counsel for petitioner and is also made mention of in the petition, is that representation having been filed by detenu through his father has not been considered by respondents. When the matter was being finally heard by this Court on 21st September 2022, counsel for respondents, as directed by this Court, produced Original Receipt Register, which revealed that representation made by father of detenu had been received on 4th July 2022 at Serial no.3127. The said representation has not been considered by respondents. Thus, there is substance in the submission of learned counsel for petitioner that non-consideration of representation of detenu vitiates impugned order of detention. The said representation has not been considered by respondents. Thus, there is substance in the submission of learned counsel for petitioner that non-consideration of representation of detenu vitiates impugned order of detention. Law in this regard is settled as the Supreme Court in Tara Chand v. State of Rajasthan and others, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, Kanpur and others (1986) 1 SCC 650 , has held that if there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) as to render the detention unconstitutional and void. 9. In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417 , it has been held as follows: 'It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be" in clause (5) of Article 22convey the message that the representation should be considered and disposed of at the earliest.' 10. In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC 476 , it has been held as follows: '.... it is settled law that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.' 11. In Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781 , the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression 'as soon as may be', in Article 22(5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay. 12. In the present case, although the record, viz. Original Receipt Register, reveals representation having been received, yet the Reply Affidavit filed by respondents mentions that detenu did not made any representation, which reflects non-application of mind on the part of respondents and consequently vitiates the detention. 13. 12. In the present case, although the record, viz. Original Receipt Register, reveals representation having been received, yet the Reply Affidavit filed by respondents mentions that detenu did not made any representation, which reflects non-application of mind on the part of respondents and consequently vitiates the detention. 13. In such circumstances, in view of the decisions cited supra, the Detention Order No.DMB/PSA/29 of 2002 dated 27.06.2022, passed by Deputy Commissioner, Budgam, is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. 14. Detention record be returned to counsel for respondents.