Manzoor Ahmad Lone vs Ut Of J&K And Ors
2021 Latest Caselaw 1446 j&K/2

                                                                               1




       IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR
                               ...
                                               [WP(Crl) 08/2021
                                                            Reserved on: 29.09.21
                                                       Pronounced on: 16.11.2021

Manzoor Ahmad Lone
                                                                 .......Petitioner
                               Through: Mr. M.A Qayoom, adv.

                               With Mr. Mian Muzaffar, adv.

                                      vs
UT of J&K and ors
                                                                ......Respondent(s)

                               Through: Mr. Sajjad Ashraf, GA

CORAM:
         HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
                               JUDGMENT

1. Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 14-DMK/PSA of 2020 dated 30.12.2020, purporting to have been passed by District Magistrate Kupwara, whereunder detenu namely Manzoor Ahmad Lone s/o Ghulam Mohammad Lone R/o Lachipora, Baramulla, District Baramulla, is under detention.

2. It is submitted that the detenu is never involved in any illegal activity. The allegations levelled against the detenu in the grounds of detention are vehemently denied to be correct, as the same are baseless. Therefore, the detention order deserves to be quashed.

3. Briefly stated the case of the petitioner is that the detenu was arrested in the month of June 2020 by Police Station Kralpora and implicated in a case FIR 51/2020 u/s 13, 18, 39 ULA (P) Act 7/25 IA Act. and 8/21 NDPS Act of Police station Kralpora. However, the bail application was pending, but respondent no.2 at the behest of respondent no.3 issued the impugned order instead of filing the objections.

4. The challenge to the impugned order is inter alia made on the grounds that, the allegations against the detenu have no nexus with the detenu

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 detenu 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 detenu was already arrested and was in police custody in connection with a case the aforesaid FIR, the detenu being in the police custody, is uncalled for; the satisfaction recorded by the detaining authority is vis-à-vis the alleged activities of the detenu being prejudicial to the security of the state; the material in the shape of dossier has not been furnished to the detenu nor has he been furnished the copy of FIR, statements allegedly recorded under section 161, 164- A of the Code of Criminal Procedure, seizure memo, recovery memo as mentioned in the grounds of detention so that the detenu could have made an effective representation against his detention to the Competent Authority;

5. In his counter affidavit, respondent no.2 has stated that the detenu's activities being prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. But despite the directions, detention record not produced.

6. Heard learned counsel for the parties, perused the writ record and considered the matter. Detention record produced by learned counsel for the respondents.

7. The contention raised by learned counsel for the petitioner-detenu with reference to the detaining authority having not mentioning in the order about whether petitioner-detenu has made any bail application, this fact has not mentioned either in the grounds of detention or in the impugned order. Learned counsel for the Petitioner has

vehemently contended that the detenu was in police custody and there was no chance of his being released on bail. In this regard, my attention has been drawn to the averments contained in grounds of the writ petition, wherein it was specifically urged that 'the detenu was already in custody and he had applied for bail which but was not granted.' It is contended that in these circumstances, there was no warrant for passing the order of preventive detention.

8. In support of his submissions learned counsel for petitioner-detenu has referred to and relied upon "AIR 2021 Supreme Court 3656" titled "Banka Sneha Sheela v. State of Telangana and ors. in which an identical grouse was involved. The Hon'ble Supreme Court observed as under:

"22. In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176, this Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail having been granted. This Court held:

"23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.

24. Article 21 of the Constitution enjoins that: "21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law." In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution.

9. Learned counsel for petitioner has also referred to and relied upon the Division Bench judgment of this court, reported as 2020 (2) JKJ[HC] 102; 2019 (5) JKLT 288: The relevant paras are extracted are as follows:

14. ...................has placed reliance on the pronouncement of the Supreme Court reported at AIR 2000 SC 3675 Amrit Lal

& Ors. Vs. Union of India & Ors. wherein the Supreme Court had held that there must be cogent material before the officer passing the detention order that the detenu who stands arrested, is likely to be released onbail. It was categorically held by the Supreme Court that such conclusion must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It was held that 'likelihood of detenu's moving an application for bail is not a cogent material'. In para 6, the Supreme Court has observed that 'likelihood of his moving an application for bail which is different from likelihood to be released on bail'. This reasoning in our view is not sufficient compliance with the requirements as laid down. Thus, merely the possibility of the detenu moving the bail application in a case in which he was in custody but had not obtained the bail order, has been held to be insufficient reason for passing of an order of detention under preventive detention laws.

15. In the pronouncement of the Supreme Court reported at 2011 (5) SCC 244 Rekha vs. State of Tamil Nadu, a detention order came to be passed when the detenu was already in custody. So far as the legality of the detention order was concerned, it was argued by counsel for the appellant, that the impugned detention order was passed on 8th April 2010 and that the bail application of the detenu was also dismissed on the same date. The submission was that it could not be said that no bail application was pending when the detention order was passed. The observations of the Court in Paras 25, 26, 27 and 30 relevant for our consideration read as follows:

"25. In this connection, it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 08.04.2010. On the other hand, in para 4 of the grounds of detention it is mentioned that "Thiru Ramakrishnan is in remand in Crime No. 132/2010 and he has not moved any bail application so far". Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bailhad been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence, the detention order in question cannot be sustained".

In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there islikelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such allegedsimilar cases must be given, otherwise the

bald statement of the authority cannot be believed.

26. So far as the contours of this requirement and sufficient compliance thereof is concerned, learned counsel for the appellant has placed a pronouncement of the Supreme Court reported at AIR 1999 SC 3051 Sophia Gulam Mohd. Bham, vs. State of Maharashtra before us wherein the importance of this requirement stands considered. Para 12, 13, and 14 of the same reads as under:

"12. The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.

13. Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22(5) of the Constitution which provides as under:

"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

14. The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. Thereshould not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carry the same philosophy that thereshould not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article

22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."

(Emphasis supplied)

10. Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about the his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act, 1978, which renders the detention order as invalid and deserves to be quashed.

11. The aforesaid 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."

12. In view of the law mentioned hereinbefore, 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. The petition is accordingly, allowed and detention order no. 14-

DMK/PSA of 2020 dated 30.12.2020, purporting to have been passed by District Magistrate Kupwara, under which the detenu namely Manzoor Ahmad Lone s/o Ghulam Mohammad Lone R/o Lachipora, District Baramulla, is under detention, is quashed, with direction for his release forthwith.

14. The petition stands accordingly disposed of.

15. No order as to costs.

16. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Detention record be returned to learned Govt Advocate.

Disposed of.

(Ali Mohammad Magrey ) Judge Srinagar 16.11.2021 S.A Hussain, Secretary

i)Whether the order is speaking: Yes/No.

ii)Whether the order is reportable : Yes/No

SYED AYAZ HUSSAIN 2021.11.16 16:50 I attest to the accuracy and integrity of this document