Abdul Rashid Dar vs Union Territory Of Jk And Anr
2021 Latest Caselaw 951 j&K/2

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           IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT SRINAGAR

                                 WP(Crl) No. 182/2020

                                                             Reserved on 16.08.2021
                                                      Pronounced on 24.08.2021


Abdul Rashid Dar
                                                                        ..... Petitioner(s)
                                       Through: -
                               Mr. G. N. Shaheen, Advocate

                                         V/s
Union Territory of JK and Anr.

                                                                   ..... Respondent(s)

Through: -

Mr. Mir Suhail, AAG

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge

(JUDGMENT)

1. Detenu, Abdul Rashid Dar son of Ghulam Mohammad Dar resident of

village Satoora, Tehsil Aripal, District Pulwama through his wife seeks

quashment of detention order No. 34-DMP/PSA/20 dated 02.11.2020,

purporting to have been passed by District Magistrate, Pulwama, with

consequent prayer for release of the detenu forthwith.

2. The petitioner-detenu has challenged the order of detention on the

following grounds:

"a) That the allegations made in the grounds of detention are vague, non-

existent and no prudent man can make a representation against such allegation and passing of detention on such grounds is unjustified and unreasonable. The detaining authority has mentioned in FIR in the grounds of detention, however, it is respectfully submitted that the allegations as against the detenue are far from reality.

b) That the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

c) That the impugned order has been passed without proper application of mind.

d) That the grounds of detention are vague, indefinite, uncertain and ambiguous. The grounds of detention relied upon by detaining authority refer to alleged omissions and commissions attributed to detainee without specific details. Grounds of detention refer to activities of detainee with all vagueness and ambiguity demonstrable from its contents. Allegations made in the grounds of detention are nothing but bald statements without any details.

3. Notice was issued to respondents. They appeared through their learned

counsel and filed counter affidavit wherein they submitted that the detention

order is well founded in fact and law and seeks dismissal of the Heabus Corpus

Petition.

4. Heard learned counsel for the petitioner-detenue as well as the learned

counsel for the respondents, perused the writ records.

5. Learned counsel for detenue has submitted that the grounds taken in the

detention order and the material referred to and relied upon has no relevance

because the detenue was already in custody, therefore, there is no possibility

that the detenue be implicated in the activities prejudicial to the security of the

State. It is submitted that in absence of material, the detention order is passed

on mere ipsidixit of detaining authority, therefore, the detention order is bad

in law. Learned counsel for petitioner has in order to strengthening his

submission referred to and relied upon (2006) 2 Supreme Court Cases 664

titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and

anr.

6. The only precious and valuable right guaranteed to a detenue is of

making an effective representation against the order of detention. Such an

effective representation can only be made by a detenue when he is supplied

the relevant grounds of detention, including the materials considered by the

detaining authority for arriving at the requisite subjective satisfaction to pass

the detention order. Since the material is not supplied to the detenue, the right

of the detenue to file such representation is impinged upon and the detention

order is resultantly vitiated. Judgements on this point, both of the Supreme

Court and of various High Courts, including our own High Court, are galore.

I may refer to one such judgment of the Supreme Court herein. In 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, in paragraph

10 of the judgment, has held 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 detenualongwith 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".

7. In Khudiramcase (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).

8. In Smt. Icchu Devi 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 detenue to be supplied copies of such documents,

statements and other materials flows directly as a necessary corollary from the

right conferred on the detenue 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.

9. So far as the ground taken i.e non communication of the grounds of

detention is concerned, perusal of file reveals, that there is nothing to show or

suggest that the grounds of detention couched in English language were

explained to the detenue in a language understood by him, as there is no material

to that effect on record. This according to the view taken by Hon'ble Apex Court

in "LallubhaiJogibhai 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 detenue, 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

detenue. 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 detenue in writing in a language which he understands. The whole purpose of communicating the 'grounds' to the detenue is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenue 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."

10. In view of the law laid down by the Apex Court in aforesaid cases vitiates

the detention order, as not amounting to effect communication of grounds, and

resultant deprivation of the right to make representation against the same.

11. Examining the present case on the touch stone of the above settled position

of law and perusal of record, the detenue was not supplied the materials relied

upon by the detaining authority. The detenue was provided material in the shape

of grounds of detention with no other material / documents, as referred to in the

order of detention. On these counts alone, the detention of the detenue is vitiated,

the detenue having been prevented from making an effective and purposeful

representation against the order of detention.

12. Accordingly, the detention order No. 34-DMP/PSA/20 dated 02.11.2020

is quashed and the detenue, Abdul Rashid Dar son of Ghulam Mohammad Dar

resident of village Satoora, Tehsil Aripal District Pulwama, is directed to be

released from preventive custody forthwith.

14. Registrar Judicial to send a copy of this order to Director General of

Prisons and also concerned Jail authorities for compliance.

Disposed of.

(Ali Mohammad Magrey) Judge

SRINAGAR 24.08.2021 "Mohammad Yasin Dar"

                               i)    Whether order is speaking: Yes/No.
                               ii)   Whether order is reportable: Yes/No.




MOHAMMAD YASIN DAR
2021.08.25 10:34
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integrity of this document