Manzoor Ahmad Mir vs Ut Of J&K & Anr
2023 Latest Caselaw 852 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                                 Reserved on: 17.07.2023
                                                 Pronounced on:02.08.2023

                          WP(Crl.) No.180/2021


MANZOOR AHMAD MIR                                        ...Petitioner(s)

             Through: - Mr. Wajid Haseeb, Advocate.
Vs.

UT OF J&K & ANR.                                        ...Respondent(s)

             Through: - Mr. Raees ud Din Ganai, Dy. AG.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                 JUDGMENT

1) By the medium of instant petition, the petitioner has challenged

the legality and veracity of the order No.52/DMP/PSA/2021 dated

18.10.2021, issued by District Magistrate, Pulwama - respondent No.2

herein, in terms whereof, Manzoor Ahmad Mir S/o Gh. Ahmad Mir R/o

Kisergam Tehsil Kakapora (hereinafter referred to as the detenue), has

been ordered to be taken into preventive custody and lodged in Central

Jail, Jammu (Kotbalwal).

2) The petitioner has contended that the detaining authority has

passed the impugned detention order mechanically without application

of mind, inasmuch as the allegations mentioned in the grounds of

detention have no nexus with the detenue and that the same have been

fabricated by the police in order to justify its illegal action of detaining

the detenue. It has been contended that the grounds of detention are

vague, non-existent on which no prudent man can make a

representation against such allegations. It has been further contended

that the Constitutional procedural safeguards have not been complied

with in the instant case, inasmuch as whole of the material which

formed basis of the impugned detention order has not been supplied to

the petitioner and that the representation filed by him has not been

considered by the respondents.

3) Upon being put to notice, the respondents appeared through their

counsel and filed their reply affidavit, wherein they have disputed the

averments made in the petition and insisted that the activities of detenue

are highly prejudicial to the security of the State. It is pleaded that the

detention order and grounds of detention along with the material relied

upon by the detaining authority were handed over to the detenue and

the same were read over and explained to him. It is contended that the

grounds urged by the petitioner are legally misconceived, factually

untenable and without any merit. That the detenue was informed that

he can make a representation to the government as well as to the

detaining authority against his detention. It is further claimed in the

reply affidavit that all statutory requirements and constitutional

guarantees have been fulfilled and complied with by the detaining

authority and that the order has been issued validly and legally. The

respondents have placed reliance on the judgment of the Supreme Court

in Hardhan Saha v. State of W.B (1975) 3 SCC 198. The respondents

have produced the detention record to lend support to the stand taken

in the counter affidavit.

4) Learned counsel for the petitioner, while seeking quashment of

the impugned order, projected various grounds but his main, thrust

during the course of arguments, was on the following grounds:

(I) That the detenue was not furnished the whole of the material to enable him to make an effective representation against his detention.

(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same was not considered thereby rendering the detention order unsustainable in law.

5) So far as the first ground of challenge is concerned, a perusal of

the material on record reveals that the petitioner has received detention

warrant (01 leaf), notice of detention (01 leaf), grounds of detention

(03 leaves), dossier of detention (Nil), copies of FIR, statements of

witnesses and other related relevant documents (Nil) (total 05 leaves),

and in token whereof, his signatures have been obtained on the

document under the style 'Execution Report', which forms part of

detention record. Nothing has been brought on record to indicate that

the copy of the police dossier has been furnished to the detenue. Rather

the record produced by the respondents corroborates the fact that whole

of the material relied upon by the detaining authority and transmitted to

him by the concerned sponsoring agency has not been furnished to the

detenue.

6) In the case of preventive detention, a detenue has the right under

Article 22(5) of the Constitution to be furnished with particulars of the

grounds of his detention. The Supreme Court has in Ram Krishan

Bhardwaj v. State of Delhi, AIR 1953 SC 318, while interpreting

Article 22(5) of the Constitution, observed that furnishing of grounds

of detention means material sufficient to enable the petitioner to make

an effective representation.

7) In Shalini Soni v. Union of India, (1980) 4 SC 544, the

Supreme Court has observed that 'grounds' in Article 22(5) do not

mean mere factual inferences but means factual inferences plus factual

material which led to such factual inferences. The Court further

clarified that copies of the documents to which reference is made in the

grounds must be supplied to the detenue as part of the grounds.

8) Thus, the detaining authority is required to communicate to the

detenue, (i) grounds of detention; (ii) all the documents referred to in

the grounds of detention; (iii) all the documents and material which the

detaining authority considers while framing his subjective satisfaction;

(iv) detention order and also the police report or dossier if any.

9) The word 'grounds' used in clause (5) of Article 22 of the

Constitution means not only the narrations or conclusions of facts, but

also all materials on which those facts or conclusions which constitute

grounds are based. Such material has to be supplied to the detenue so

as to enable him to make an effective and meaningful representation.

The detaining authority is obliged to mention in the grounds as to on

which material it has based its satisfaction. Failure to do so renders the

detention illegal. To communicate the bare grounds of detention to the

detenue will not be sufficient unless grounds are accompanied by

material which the detaining authority has considered and relied upon.

For this, support can be had from the judgment of this Court in the case

of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home,

1999 SLJ 241.

10) As already noted, the petitioner has not been furnished the whole

of the material which formed the basis of the grounds of detention. It

appears that the copy of the police dossier which formed basis for the

grounds of detention has not been furnished to the petitioner. Thus, vital

safeguards against arbitrary use of law of preventive detention have

been observed in breach by the respondents in this case rendering the

impugned order of detention unsustainable in law.

11) It needs no emphasis that the detenue cannot be expected to make

an effective and purposeful representation which is his constitutional

right guaranteed under Article 22(5) of the Constitution of India, unless

and until the material, on which detention is based, is supplied to the

detenue. The failure on the part of detaining authority to supply the

material renders detention order illegal and unsustainable. While

holding so, I am fortified by the judgments rendered in Sophia Ghulam

Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC

3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka &

Ors. (AIR 2009 SC 2184).

12) In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (AIR 1999 SC 3051), the Supreme Court has observed as under:

".....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 detenue 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 to the detenue 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."

13) In Ibrahim Ahmad Batti v. State of Gujarat, (1982) S SCC 440, the Supreme Court has, while relying on its earlier judgment Khudiram Das v. State of W.B, (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531; Shalini Soni v. Union of India, (1980) 4 SCC 544; Lulluabhai Jogibhai Patel v. Union of India,(1981) 2 SCC 427; Kamla Kanyalal Khushalaniv. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC, 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 merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have 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 five days ordinarily and in the 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 Art. 22 (5) of the Constitution."

14) From the foregoing discussion of law on the subject, it is

clear that an order of preventive detention becomes unsustainable

in law if the detenue has not been provided with all the material

that has formed basis of his detention. As already noted, in the

instant case, the copy of the police dossier has not been furnished

to the detenue. Hence, the impugned order of detention has been

rendered unsustainable in law.

15) The next ground projected by the petitioner is that he had

submitted a representation against his detention but the same has not

been considered by the respondents.

16) It has been specifically contended by the petitioner that he had

made a representation against his detention through his father, which,

seemingly, has been received by the office of District Magistrate,

Pulwama, on 28.10.2021. The copy of the representation bears the seal

and endorsement of the office of the District Magistrate concerned. The

petitioner has specifically pleaded in ground (viii) of his petition that

he made a representation before the Detaining Authority but the same

has not been placed before the Advisory Board. These assertions have

gone unrebutted as there is no denial to the same by the respondents in

the counter affidavit. The detention record does not suggest that the said

representation has been either placed before the Advisory Board or

considered by the Board. The failure of the respondents to place the

representation submitted by the detenue before the Advisory Board and

its consequent non-consideration indisputably amounts to violation of

constitutional safeguards provided the provisions of Article 22(5) of the

Constitution. A reference in this behalf to the judgment of the Apex

Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979

(4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment,

the Court observed as under:-

"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

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.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution."

17) From the aforesaid legal position on the subject, it is clear that

non-consideration or an unreasonably belated consideration of the

representation tantamounts to non-compliance of Article 22(5) of the

Constitution, which in turn renders the detention unsustainable in law.

18) For the afore-stated reasons, the petition is allowed and the

impugned detention order isquashed. The respondents are directed to

release the petitioner from the preventive custody forthwith, unless, of

course, he is not required in connection with any other case.

(Sanjay Dhar) Judge Srinagar 02.08.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No