Muzamil Ahmad Dar vs Ut Of J&K And Anr
2022 Latest Caselaw 727 j&K/2

                                                                        1




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

LPA 31/2022

Muzamil Ahmad Dar .......Petitioner Through: Syed Faheem Andrabi, adv.

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

Through: Mr. Asif Maqbool, Dy AG.

CORAM:

HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE

01. The present appeal has been preferred by the detenu, Muzamil

Ahmad Dar, through his father, Ab. Rashid Dar, against the judgment

dated 16.02.2022, delivered by a Single Bench of this Court in WP Crl

No. 267/2021 in which the detention order No. 87/DMS/PSA/2021

dated 18.10.2021, issued by the District Magistrate, Srinagar, was

challenged. By virtue of the said detention order, the appellant/detenu

was placed under preventive detention in exercise of powers under

Section 8 of the J&K Public Safety Act, 1978. The said

appellant/detenu was ordered to be lodged at District Jail, Rajouri.

02. In the dossier it is alleged that the detenu came into contact with

the militants and used to work as OGW of Let/TRF outfits and also

motivated the youth of his area for indulging in anti-national and anti-

social activities and he (detenu) is the key motivator always motivates

the youth to indulge in militancy. It further reveals that the detenu is a

hard core over ground worker(OGW) sympathizer and a promoter of

TRF terrorist outfit in Valley.

3. The learned counsel for the appellant-detenu has raised primarily

three issues before the court questioning the validity of the detention.

The first point taken by the learned counsel for the petitioner is that the

detention order was passed when there was no FIR registered against

the detenu, the detention order was passed on the so called allegations

levelled against the detenu, that he was indulging in motivating the

youth to join the militancy. In these circumstances, it was submitted by

the learned counsel for the appellant-detenu, the detaining authority

ought to have satisfied himself with the fact that there was imminent

likelihood of appellant-detenu to indulge in anti-national activities that

it was necessary to detain the detenu in order to prevent him from

indulging in such acts. According to the learned counsel for the

appellant-detenu, there is no such satisfaction recorded in the grounds

of detention.

4. The second point taken by the learned counsel for the appellant-

detenu was that non-supply of relevant material/ documents also

vitiated the detention order. In this context, it was the case of the

appellant-detenu that no documents at all were supplied to the

appellant/detenu. The non-supply of relevant documents seriously

undermines the capacity of a detenu to make an effective representation

against the detention and that in itself would be a ground to declare the

detention order void, though the appellant-detenu submitted the

representation before the competent authority but that was not decided

by the authority till date. This right flows from the Constitution of India.

In support, he referred to the decision of the Supreme Court in the case

of Sophia Gulam Mohd. Bham v. State of Maharashtra: AIR 1999 SC

3051.

5. The third and important point raised by the learned counsel for

the appellant-detenu was based on the provisions of Section 13 of the

J&K Public Safety Act, 1978, which require that the grounds of

detention should have been communicated to the detenu in the language

which was understandable to him and that he should be afforded the

earliest opportunity of making a representation against the order to the

Government. According to him, the detenu only understood Kashmiri

language and the grounds of detention were in English language and no

translated copies of the grounds of detention in Kashmiri were provided

to him. This seriously prejudiced his right to make an effective

representation and on this ground also the detention order would vitiate

the detention. Though the detenu has filed representation, but that was

neither considered nor rejected.

In support of his argument, learned counsel for the appellant has referred to and relied upon case titled "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."

6. On the other hand, Mr. Asif Maqbool, GA, defended the

impugned detention and he responded to each of the points. With regard

to the first point he submitted that there is a mention in the grounds of

detention about the arrest of the detenu with reference to the anti-

national activities and indulging himself motivating the youth for

joining the militancy for disrupting the law and order situation in the

Valley. Therefore, according to him, the detaining authority was aware

of the fact that the detenu was already indulging to motivate the youth

for involving them in the anti-national activities when the detention

order was passed. He, therefore, submitted that the point raised by the

learned counsel for the appellant-detenu on this score was untenable.

7. With regard to the plea of non-supply of material/ documents,

Mr. Asif Maqbool, learned GA, placed before us the record pertaining

to the detention. Ongoing through the same, we find that detenu has not

been furnished all the documents referred in the grounds of detention.

8. Based upon the said receipt, Mr. Asif Maqbool GA submits that

the grounds of detention had been supplied along with other relevant

documents and, therefore, the appellant cannot make any grievance on

this ground. He has referred to and relied upon the Judgment(s) reported

as (1986) I Supreme Court Cases 404 titled Shiv Ratan Makim vs.

Union of Inida and AIR 2001 Supreme Court 301 titled R. Keshava

vs. M. B. Prakash and Ors.

9. In so far as the point of supply of translated copies of grounds of

detention in Kashmiri language is concerned, the learned GA,

submitted that there was no need to supply translated copies of grounds

of detention in Kashmiri language as grounds of detention had been

communicated in the language understandable to the detenu.

10. We have heard learned counsel for the parties, perused the record

and considered the matter.

10. We shall take up the first point with regard to the ground of

satisfaction that has to be recorded by the detaining authority in case

the detenu was indulged in motivating the youth to joint militancy as

there is no FIR registered against the detenu which would compel the

detaining authority to pass the detention order. In this context we need

to refer to the decision of the Supreme Court in Surya Prakash Sharma

(supra). The relevant paras are extracted herein below:

". The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words:

The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that

(a) the detenu is likely to be released from custody in the near future, and (b) taking into

account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenu was in custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.

On the conclusions as above we quash the order of detention."

11. From the above decision, it is evident that for an order of

detention to be valid in respect of a person in custody, it is

necessary that the grounds of detention must show that; (i) the

detaining authority was aware of the fact that the detenu is

already in custody; and (ii) there were compelling reasons

justifying such detention despite the fact that the detenu is

already in detention. The expression 'compelling reasons' has

also been explained by the Supreme Court as signifying that there

must be cogent material before the detaining authority on the

basis of which it may be satisfied that (a) the detenu is likely to

be released from custody in the near future, and (b) taking into

account the nature of the activities of the detenu, that he is

indulged in the activities to motivate the youth to join the

militancy, it is likely that after his release from custody he would

indulge in such activities and that it was necessary to detain him

in order to prevent him from engaging in such activities.

12. In the present case we find that although there is mention

of the fact that the detenu had been arrested on the allegations

that he is motivating the youth to join militancy but, it is not clear

as to whether the detaining authority was aware of the fact that

the detenu continued to be already in custody or arrested.

Furthermore, assume that the detaining authority was aware that

the detenu was in custody in connection with the so-called

allegations, the compelling reasons, referred to above, have not

been indicated in the grounds of detention. In other words, the

grounds of detention nowhere make a mention or indicate

satisfaction that the detenu was being likely to be released from

custody in near future. Therefore, in view of the decision of the

Supreme Court in Surya Prakash Sharma, this alone would

vitiate the detention order.

13. Now move to the second point which pertains to the non-

supply of relevant material in order that the detenu could make

an effective representation against his detention. According to

the learned counsel for the appellant-detenu, the detenu has

submitted the representation before the competent authority, but

that was still pending for consideration before the authority,

reasons best known by the authority. Neither the representation

was rejected nor any result was conveyed to the detenu.

Therefore, on this count also would vitiate the detention order.

14. The third point which was urged by the learned counsel for

the appellant was that translated copies of the detention order/

grounds of detention were not supplied and this can itself

invalidate the detention of the detenu. Reliance was placed on the

decision of the Supreme Court in the case of Razia Umar Bakshi

v. Union of India and others: AIR 1980 SC 1751. In that

decision, the Supreme Court had observed that where the

detaining authority is satisfied that the grounds are couched in a

language which is not known to the detenu, it must see to it that

the grounds are explained to the detenu, a translated script is

given to him and the grounds bear some sort of a certificate to

show that the grounds have been explained to the detenu in the

language which he understands. In the present case, it is an

admitted fact that the grounds of detention in Kashmiri language

which is the language which the petitioner understood was not

furnished to him. That being the case, this is yet another ground

for invalidating the detention order.

15. We may refer to Judgment of Apex Court in case 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. Para 10 of the Judgment being

relevant is extracted 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 along with 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."

16. In Khudiram case (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).

17. In Smt. Icchu Deve 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. Though the detenu

has already submitted the representation before the authority,

but same neither has been considered or rejected.

18. We have also considered the submissions of Mr. Asif

Maqbool, learned GA, in so far as non-supply of complete

material is concerned. As per the constitutional and statutory

mandate, the detaining authority is under obligation to supply the

material/documents forming the basis for detention of the detenu.

19. For all these reasons, the impugned judgment dated

16.02.2022 passed by the learned Single Judge in WP Crl No.

267/2021 is set-aside and the detention order No.

87/DMS/PSA/2021 dated 18.10.2021 is quashed. The

appellant/detenu namely Muzamil Ahmad Dar s/o Ab. Rashid

Dar r/o Ray-Kaprin, Tehsil Shopian, District Shopian, is directed

to be released forthwith, if he is not, otherwise in custody in

connection with some other case(s).

                                     (Puneet Gupta)                    (Ali Mohammad Magrey)
                                          Judge                                      Judge
           Srinagar
           26.05.2022
           Ayaz

                     i)          whether approved for reporting: Yes/No
                     ii)         whether the judgment is speaking: Yes/No.




SYED AYAZ HUSSAIN
2022.05.27 16:10
I attest to the accuracy and
integrity of this document