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2023 DIGILAW 237 (JK)

Ab. Majeed Dar v. Union Territory of J&K

2023-06-09

MOKSHA KHAJURIA KAZMI, N.KOTISWAR SINGH

body2023
JUDGMENT : MOKSHA KHAJURIA KAZMI, J. 1. The present Letters Patent Appeal (LPA) has been preferred by the detenue, Abdul Majeed Dar, through his wife, Naza Begum, against the judgment and order dated 08.02.2023, rendered by the learned Single Judge of this Court in a habeas Corpus petition [WP (Crl) No. 514/2022], whereby the detention Order No. 27/DMK/PSA of 2022, dated 05.07.2022, passed by the District Magistrate, Kupwara, by virtue of which the appellant had been placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978 and was ordered to be lodged in District Jail, Bhaderwah, Jammu, was challenged on the ground taken therein. Brief facts 2. The detenue-appellant herein through his wife has filed a Habeas Corpus Petition (No. 514/2022), challenging his detention Order No. 27/DMK/PSA of 2022, dated 05.07.2022, on the grounds that the detenue was arrested by the Police concerned without any rhyme or reason on 20.06.2022 and was kept in Police Chowki Nagri till 14.07.2022, wherefrom he was shifted and lodged in Police Station, Kupwara on 14.07.2022. Thereafter on 15.07.2022, he was shifted to District Jail, Bhaderwah and detained under the Provisions of J&K Public Safety Act, 1978. It is averred that the detention order is illegal, unconstitutional and in violation of the provisions of law and Constitution of India as also the provisions of the J&K Public Safety Act, 1978; the detenue has only been provided the illegible copy of dossier, grounds of detention along with the letter of SSP Kupwara, and no other document. The foundation of the impugned detention order is on FIR Nos' 262/2002 and 122/2007 of Police Station Sopore and Police Station Handwara, and the grounds of detention, on the basis whereof the earlier detention orders were also passed against the detenue. The allegations attributed to the detenue are imaginary and politically motivated, based on the baseless and concocted surmises. These facts have been brought to the notice of the Detaining Authority by way of a representation made by the detenue through his wife on 19.07.2022, through registered post to which extent, postal receipt is placed on record, but the said representation has not been considered by the Detaining Authority as on date. 3. The detention order (supra) was executed on 15.07.2022, when the detenue was already in custody of Police Chowki Nagri, w.e.f. 20.06.2022 till 14.07.2022. 4. 3. The detention order (supra) was executed on 15.07.2022, when the detenue was already in custody of Police Chowki Nagri, w.e.f. 20.06.2022 till 14.07.2022. 4. The writ Court has dismissed the said Habeas Corpus Petition after examining the material and appreciating the contentions of learned counsel for the parties. The conclusion arrived at by the learned Single Judge is that none of the rights of the detenue have been violated by passing of the detention order in question. 5. Feeling aggrieved and dissatisfied with the judgment and order dated 08.02.2003, the instant appeal has been filed by the detenue through his wife. 6. We have heard learned counsel for the parties and have gone through the record, produced by the learned counsel for the respondents. 7. The learned counsel for the appellant has primarily raised an issue that the representation dated 19.07.2022, sent through registered post, by the appellant, through his wife (Naza Begum), was not considered by the respondents. In this context respondents in their counter affidavit have submitted in para-5 that the detenue has no right to challenge his detention for having ostensibly chosen not to file any representation against his detention before the competent authority, which was an equal alternate efficacious remedy. The intentional and willful act not to avail such remedy estops the appellant to challenge his preventive detention. 8. It appears that the representation dated 19.07.2022, filed against the detention order of the detenue has not been considered by the respondents till date though respondents were under a bounden duty to dispose of the same with a reasonable dispatch and to convey its outcome to the appellant at an earliest. In the instant case, the respondents have slept over the matter and have not decided the representation of the appellant as on date. The non-consideration of the representation is fatal to the case of the respondents, and constitutes sufficient ground for quashing the impugned detention order. 9. The Hon'ble Supreme Court recently in Pramod Singla v. Union of India on 10th April in (arising out of Special Leave Petition (Crl.) No. 10798 of 2022 has held in Para 22 as under: “22. For the purpose of deciding this question, we must first elaborate on the rights accrued to a detenue against his preventive detention in terms of his representation. For the purpose of deciding this question, we must first elaborate on the rights accrued to a detenue against his preventive detention in terms of his representation. The detenue, in cases of preventive detention under the COFEPOSA Act, has the right to submit a representation to the detaining authority, the Government, and the Advisory Board. These representations then, as per Article 22(5) of the Constitution of India, must be decided at the earliest opportunity possible. If the representation is accepted either by the Government or the detaining officer, the detenue is released, however, if the representation is rejected, then the detention period is continued.” 10. The Apex Court in the judgment supra has also dealt with the importance of the legibility of the documents required to be furnished to the detenue. Paragraph 39 & 40 of the said judgment are taken note of as under: 39. In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities, because the detenue, while submitting his representation, does not have clarity on the grounds of his or her detention. In such a circumstance, the relief under Article 22(5) of the Constitution of India and the relevant statutory provisions allowing for submitting a representation are vitiated, since no man can defend himself against an unknown threat. 40. In the case of Harikisan v. State of Maharashtra & Ors. (1962) Supp. 2 SCR 918 this Court held that in cases of preventive detention, as per the principles enshrined under Article 22(5) of the Constitution of India, the detaining authority must explain the grounds of detention to the detenue, and must provide the material in support of the same and in the language understood by the detenue. The relevant Paragraph of the said judgment is being reproduced herein: “.....The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of Court proceedings concerning him and other persons who were alleged to be his associates. The relevant Paragraph of the said judgment is being reproduced herein: “.....The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of Court proceedings concerning him and other persons who were alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment, amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order...” 11. One more ground on which the learned counsel for the appellant has laid emphasis and has questioned the validity of the detention order is the non-supply of relevant material/documents to the detenue. It was contended that the documents supplied to the appellant herein, forming basis for his preventive detention were illegible and on this count the impugned detention order is liable to be quashed. 12. In this context, it was submitted that non-supply of relevant documents to the detenue prevented the detenue to make an effective representation against his detention which in itself form a ground to declare the detention order void. This right of making a representation flows from the Constitution of India. In support, the learned counsel for the appellant has referred to the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra, AIR 1999 SC 3051 and Shri Lallubhai Jogibhai Patel v. Union of India and Others, AIR 1981 SC 728 . 13. Another ground raised by the learned counsel for the appellant was based on the provisions of Section 13 of the J&K Public Safety Act, 1978, which requires that the grounds of detention should have been communicated to the detenue in the language which he understands and he should have been afforded an opportunity of making an effective representation against the order before the Government. According to the learned counsel, the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri, the language he understands, were provided to him, which seriously prejudiced his right to make an effective representation against his detention and on this ground also the detention order would be vitiated. 14. According to the learned counsel, the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri, the language he understands, were provided to him, which seriously prejudiced his right to make an effective representation against his detention and on this ground also the detention order would be vitiated. 14. Per contra, Mr. Sajad Ashraf learned GA, while defending the judgment of the learned Single Judge and the detention order, has produced the original record pertaining to the detention order. On going through the same, we find that there is a document signed by the detenue, Abdul Majeed Dar in English. The said document is titled as “Receipt of Grounds of Detention.” The text of the said document is set out herein-below: RECEIPT OF GROUNDS OF DETENTION “Received the grounds of detention issued by District Magistrate Kupwara vide Order No. 27/SMK/PSA/2022, dated 05.07.2022, Grounds of detention (04) leaves PSA warrant (01) leaf, Dossier along with SSP Kupwara letter (06) copies of FIR's, statements and other relevant documents (05) leaves through Executing Officer ASI Mohd. Sadiq No. 101KP EXK/873020 of P/S Kupwara. The contents of the warrant and grounds of detention has/have been read over and explained to me in languages i.e., Urdu/Kashmiri which I fully understand today on 15.07.2022. I have also been informed that I can make representation to the Government against my detention order if I so desire.” 15. Based upon the said receipt, Mr. Sajad Ashraf, GA, submitted that the grounds of detention had been supplied to the detenue along with other relevant documents and, therefore, the ground raised in the appeal that the detenue has not been provided the relevant material/documents is not tenable. In support of his contention, Mr. Sajad, learned GA, has placed reliance on the judgment of Madhya Pradesh High Court, Indore Bench-WP No. 10085/2021 (Sarabjeet Singh Mokha v. The District Magistrate, Jabalpur & Ors.). 16. Insofar as the point of supply of translated copies of grounds of detention in Kashmiri language is concerned, the learned Government Advocate 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 detenue. He submitted that it was clearly indicated in the aforesaid receipt that the grounds of detention were read over and explained to him in Urdu/Kashmiri language. He submitted that it was clearly indicated in the aforesaid receipt that the grounds of detention were read over and explained to him in Urdu/Kashmiri language. Therefore, the requirements of the constitutional and statutory provisions were followed. 17. According to the learned counsel for the respondents, all the relevant material/documents were supplied to the detenue. On examination of the record, we find that sixteen leaves have been served upon the detenue but the Executing Officer who has handed over the said documents to the detenue has not filed any affidavit with respect to the supply of the relevant material to the detenue. Therefore, in whichever way we look at this issue, there has been non-compliance of the constitutional safeguards on the part of the Detaining Authority which vitiates the detention order. 18. Another point which is urged by the learned counsel for the appellant that the translated copies of the detention order/grounds of detention were not supplied which invalidates the detention of the appellant also carries weight, as the Supreme Court in case titled [5]Razia Umar Bakshi v. Union of India and others : AIR 1980 SC 1751 , has observed that where the Detaining Authority is satisfied that the grounds are couched in a language which is not known to the detenue, 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 which he understands. Admittedly, the grounds of detention have not been furnished to the detenue in the language which he understands and that being the case, the detention order gets invalidated. 19. Since the learned Single Judge, while dismissing the WP (Crl) No. 514/2022, has lost sight of and has not returned any finding on these aspects of the matter, the impugned judgment cannot withstand the test of law. 20. For the above reasons, the LPA is allowed, the impugned judgment dated 08.02.2023, is set-aside and the detention Order No. 27/DMK/PSA of 2022, dated 05.07.2022, is quashed. The appellant is directed to be released forthwith if he is not required in connection with some other cases.