Reserved On 12.08.202 vs By The Present Habeas Corpus ...
2021 Latest Caselaw 965 j&K/2

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

                                                            WP (Crl) No. 150/2020

                                                           Reserved on 12.08.2021
                                                        Pronounced on 25 .08.2021
Rayees Ahmad Chopan
                                                          .... Petitioner(s)
                        Through:
       Mr. M. A. Qayoom, Advocate with Mr. Wajid Haseeb, Advocate
                             Vs.
UT of JK and Anr.
                          Through:
                        Mr Mir Suhail, AAG
CORAM:
       HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
                                JUDGMENT

1. By the present habeas corpus petition, the detenue through his father

Ghulam Nabi Chopan, has challenged the detention Order No. 25/DMP/PSA/20

dated 31.08.2020, for short impugned order, issued by the District Magistrate,

Pulwama, whereby the detenue, namely Rayees Ahmad Chopan S/o Ghulam Nabi

Chopan R/o Junglepora Mandoora, Tehsil Tral, District Pulwama, has been

detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978,

for short Act.

2. Briefly stated the case of the petitioner is that the detenue was arrested by

the Police Station Tral, in case FIR No. 52/2020, under Sections 18,20,39ILA (P)

Act without any rhyme; reason or justification. The District Magistrate, Pulwama,

detained him in the preventive custody under the provisions of J&K Public Safety

Act, 1978, in terms of the impugned order and lodged him in District Jail,

Kupwara.

3. The challenge to the impugned order is inter alia made on the grounds that,

the allegations against the detenue are false and have been fabricated by the police

to justify the illegal action of detaining him in preventive custody; the grounds of

detention are vague, non-existent and the impugned order, being based on such

vague, non-existent grounds, deserves to be quashed; the detenue is innocent and

has not committed any offence of whatsoever nature; the detaining authority has

not applied its mind while issuing the impugned order; the detenue was already

arrested and was in police custody in connection with above mentioned FIR and

had not applied bail, therefore, his preventive detention, despite him being in the

police custody, is uncalled for; the material relied upon has no rational nexus with

the satisfaction recorded by the detaining authority vis-à-vis the alleged activities

of the detenue being prejudicial to Security of State; the material in the shape of

dossier has not been furnished to the detenue nor has he been furnished the copy of

FIR, statements allegedly recorded under section 161, of the Code of Criminal

Procedure, seizure memo, recovery memo as mentioned in the grounds of

detention so that the detenue could have made an effective representation against

his detention to the Competent Authority; the petitioner is shown to be involved in

connection with FIR No. 52/2020, under Sections 18,20,39ILA (P) Act and it does

not connect with the dossier supplied; there is no justification given as to why the

ordinary law was not sufficient for taking care of his activities, etcetera.

4. Counter has been filed by the respondents resisting therein the claim of the

petitioner.

5. Heard learned counsel for the parties and considered the submissions made.

6. Learned counsel for the petitioner submits that it is unwarranted and illegal

to detain an individual under the provisions of public safety Act on the same set of

facts on which he previously stands arrested and was in police custody already. He

further submits that there is a complete non-application of mind on the part of

Detaining Authority as the order of detention is issued against the detenue for his

activities being prejudicial to the security of State when there is no material placed

before the Detaining Authority to reach to such conclusion, therefore, the grounds

of detention and the impugned order are inconsistent with each other which makes

the impugned order bad in law, therefore, deserves to be quashed.

7. Learned counsel for the petitioner has in order to strengthen his submissions

referred to and relied upon 2017 vol. 2 SLJ 650 titled Bilal Ahmad Dar v. State of

J&K and anr; 2018 vol. 2 SLJ 774 titled Bashir Ahmad Rather v. State of J&K

and others; AIR 1999 SC 618 tiled as Powanammal v. State of Tamil Nadu and

anr; AIR 2020 SC 1936 titled as Rekha v. State of Tamil Nadu and AIR 1989 SC

1234 titled as Chhagan Baghwan Kahar v. N. H. Kalna and others; (2006) 2

SCC 664 titled T. V. Sravanan Alias SAR Prasana v. Stae through Secretary and

anr.

8. On the other hand, learned Counsel appearing for the respondents, while

resisting the claim of the petitioner, submits that the impugned order is quite in

consonance with law and the safeguards, as were required to be taken in terms of

the provisions of the Act, have been taken.

9. Although the detention records have been produced by the learned

Government Counsel, but it does not contain anything as would suggest that there

were compelling reasons for the respondents for keeping the detenue in preventive

custody and the ordinary law was not sufficient to take care of his alleged

subversive activities.

10. As per pleadings and contentions raised at bar the detenue has been

prevented from making an effective representation against his detention as he was

not supplied the dossier and the other allied material and has, as such, been

deprived of an important constitutional right, and that the detaining authority did

not apply his mind while passing the detention order and has not revealed as to on

what materials he assumed subjective satisfaction regarding necessity of having

the subject detained when the detenue was in police custody in connection with

case 52/2020, under Sections 18,20,39ILA (P) Act.

11. There is nothing on the file to show or suggest that the grounds of detention

couched in English language were explained to the detenue in a language

understood by him. This according to the view taken by Hon'ble Apex Court in

"Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427"; the detenue 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 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."

12. In view of the law laid down by the Apex Court in case titled Lallubhai

Jogibhai Patel v. Union of India (supra) vitiates the detention order, as not

amounting to effect communication of grounds, and resultant deprivation of the

right to make representation against the same.

13. In yet another pronouncement reported as (2009) 5 SCC 296 titled Pooja

Batra v. Union of India & Ors., the Honble Supreme Court expounded on the

jurisdiction of the Court while considering the challenge to the detention order

under judicial review. It was held as follows:

"30. It is settled law that Courts exercising powers of judicial review do not consider the challenge to an order of detention as if on an appeal, reappreciating the materials, yet since an order of detention in prison involves the fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the authorities as to the decision arrived, and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered."

14. The Division Bench of this Court has also, in a case, reported as 2020 (2)

JKJ 102 titled Younis Nabi Naik v. Stae of J&K & others has laid down the same

principle.

15. In view of above, I am of the considered view that there must have been

some additional material adverted to and considered by the Detaining Authority in

arriving at a conclusion that the ordinary law was not enough for deterring the

detenue from indulging in the alleged subversive activities, registered against the

detenue, where no bail has even been granted to him and that being unavailable in

the instant case renders the impugned order as bad in law.

16. In the above background, the petition succeeds and is allowed as such. The

impugned detention order No. 25/DMP/PSA/20 dated 31.08.2020, issued by the

District Magistrate, Pulwama, detaining the detenue, namely Rayees Ahmad

Chopan S/o Ghulam Nabi Chopan R/o Junglepora Mandoora, Tehsil Tral, District

Pulwama, in preventive detention, is quashed and the detenue is directed to be

released from the preventive custody forthwith.

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

and also concerned Jail authorities for compliance.

18. Photostat copy of record produced by learned appearing counsel for the

respondents is returned back to him in the open Court.

18. Disposed of.

(Ali Mohammad Magrey) Judge

SRINAGAR 25 .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 10:30
I attest to the accuracy and
integrity of this document