Jammu & Kashmir High Court - Srinagar Bench
Rafiq Ahmad Pehloo vs Detenu on 27 May, 2021
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
(Through V.M)
Case no. ([WP Cri) No. 197/2020
Reserved on 24th May 2021
Pronounced on 27.05.21
Rafiq Ahmad Pehloo
... Petitioner
Through: Mr. N.A Ronga, adv.
vs.
Union Territory of J&K and ors1
Through : Mr. B.A Dar, Sr. AAG
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey.
JUDGMENT
1. Detenu, Raifq Ahmad Pehloo, son of Abdul Aziz Pehloo resident of
Babademb, Srinagar through his wife seeks quashment of detention order
no. DIVCOM-K/144/2020 dated 18.08.2020 purporting to have been
passed by Divisional Commissioner, Srinagar, 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 no compelling reason or circumstance was
disclosed in the order or grounds of detention to take the detenu
in preventive detention, moreso in view of the fact that as on
the date of passing of the aforesaid order of detention, the
detenu was already in custody;
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".
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.
WP (Crl) 197/20
4. Heard learned counsel for the petitioner-detenu as well as the learned
counsel for the respondents, perused the writ records as also the detention
records.
5. Learned counsel for petitioner has submitted that the grounds taken in
the detention order and the material referred to and relied upon has no
relevance because the detenu was already in custody, therefore, there is no
possibility that the detenu be implicated in the activities prejudicial to the
public at large. 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. 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 detenu is of
making an effective representation against the order of detention. Such an
effective representation can only be made by a detenu 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 detenu, the right
of the detenu 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 detenu alongwith
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".
WP (Crl) 197/20
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 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.
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 detenu 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 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."
WP (Crl) 197/20
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 detenu was not supplied the
materials relied upon by the detaining authority. The detenu 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 detenu is vitiated, the detenu having been prevented
from making an effective and purposeful representation against the order of
detention.
12. Accordingly, the detention order No. DIVCOM-K/144/2020 dated
18.08.2020 is quashed and the detenu, Rafiq Ahmed Pehloo, son of Abdul
Aziz Pehloo resident of Babademb, Srinagar, is directed to be released from
preventive custody forthwith. No order as to costs.
13. Registrar Judicial to send a copy of this order to Principal Secretary to
Director General of Prisons and also concerned Jail authorities for
compliance.
14. Detention record be returned to the learned Senior Additional Advocate
General.
Disposed of.
(Ali Mohammad Magrey)
Judge
Srinagar,
27.05.2021
Syed Ayaz Hussain,
Secretary
i) Whether order is speaking: Yes/No.
ii) Whether order is reportable: Yes/No.
MOHAMMAD YASIN DAR
2021.05.27 16:11
I attest to the accuracy and
integrity of this document
WP (Crl) 197/20
