Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 24.08.202 vs Government Of J&K And Ors on 3 September, 2021
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
{WP (Crl) 54/2021}
Reserved on: 24.08.2021
Pronounced on: 03.09. 2021
Mushtaq Ahmad Khawaja
...Petitioner/detenu
Through: Mr. Shabir Bhat, advocate
vice Mr. Shafaqat Nazir, Adv.
vs.
Government of J&K and ors
...Respondents
Through: Mr. B.A Dar, Sr. AAG
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey.
JUDGMENT
1. The preventive detention of the detenu, ordered by the
respondent no.2 (Divisional Commissioner, Kashmir) in exercise of the
powers vested in him under Section 3 of the J&K Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity
"PITNDPS'), is the subject matter of challenge in this habeas corpus petition.
2. Before taking note of the grounds of challenge taken in this petition to
assail the impugned order, it would be appropriate to give brief resume of
the activities of the petitioner-detenu, which have led him to preventive
detention. As is born out from the grounds of detention served on the detenu,
he is a habitual indulgent in the trade of narcotics and psychotropic
substances. The detenu was selling drugs to the young generation in Sopore
area and thereby making the school going children who are future of the
nation as drug addicts. The detenu was involved in a case FIR No. 166/2020
u/s 8/22 NDPS Act registered at Police Station Sopore. On 28.06.2020
detenu was arrested by police station Sopore at Model Town Nowpora
crossing Sopore along with his other associates. At the time of arrest 120
Spasmo Proxyvon plus Capsules (Contraband drug) was recovered from his
possession. During the investigation, the detenu's involvement was
established and charge sheet was produced before the competent court of
law. The detenu was bailed out in the aforesaid FIR but subsequently
detained under Preventive Detention Law by the respondent no. 2 vide order
No. DIVCOM "K"/154/2021 Dated 08.03.2021. The detenu through his
brother seeks it's quashment, with consequent prayer for release of the
detenu forthwith 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 detaining authority has not prepared the grounds
of detention by itself, which is a pre-requisite for him before passing
any detention order.
d) that the detaining authority has not applied its mind while
passing the detention order.
e) that the allegations levelled against the detenu are purely
criminal in nature and the detaining authority has failed to show and
demonstrate as to why and how the ordinary law of the land is not
sufficient to deal and deter the detenu from indulging in the
activities which are criminal in nature."
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 Habeas Corpus Petition. Despite directions, the detention record
was not produced.
4. I have heard learned counsel and considered the matter. As per
pleadings and contentions raised at bar the main ground of attack
projected by petitioner against the detention in question is, that grounds
of detention were not duly communicated to him, which prevented him
from making an effective representation against the same and thereby
he was deprived of an important constitutional right, and that the
detaining authority did not apply it's 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 detenu was already facing trial before the competent
court of law. The liberty of person (detenu) cannot be curtailed unless
the guilt is proved against him. The concept of criminal law is that
accused is presumed to be innocent till his guilt is proved. It appears
that there is total non-application of mind on part of detaining authority
while passing the detention order.
5. 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 "Lallubhai
Jogibhai 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."
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".
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. 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, in view of the above settled position of law, the
detention of the detenu is vitiated, the detenu having been prevented
from making an effective and purposeful representation against the
order of detention.
10. 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.
11. That being so the grounds of challenge set up by petitioner,
succeed and the detention stands vitiated. Other grounds urged do
not therefore, need to be separately addressed.
12. Accordingly, the detention order No. DIVCOM "K"/154/2021
dated 08.03.2021 passed by respondent no.2, is quashed and the detenu,
Mushtaq Ahmad Khawaja s/o Ghulam Nabi Khawaja R/o Tilwanpora
Seelo, Sopore, District Baramulla, is directed to be released from
preventive custody forthwith.
13. Registrar Judicial of this Court shall send copy of the judgment
to Director Prisons and Jail Superintendent concerned for compliance
of the order forthwith.
14. Disposed of.
(Ali Mohammad Magrey)
Judge
SRINAGAR:
03.09.2021
"ayaz"
i) Whether approved for reporting: No
ii) Whether the judgment is speaking: YES.
SYED AYAZ HUSSAIN
2021.09.03 11:03
I attest to the accuracy and
integrity of this document
