Abdul Samad Malla vs Ut Of J&K And Others
2023 Latest Caselaw 574 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                     WP (Crl) No. 360/2022


                                             Reserved on:        11.04.2023
                                          Pronounced on:         09.05.2023


Abdul Samad Malla                                 .... Petitioner/Appellant(s)

                        Through:-   Mr. M.A. Qayoom, Advocate.

                  V/s

UT of J&K and others                                       .....Respondent(s)

                        Through:-   Mr. Ilyaz Nazir Laway, G.A.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                              JUDGMENT

01. The District Magistrate, Bandipora, vide order No. 08/DMB/PSA of

2022 dated 07.04.2022, detained Abdul Samad Malla, S/o Abdul Rehman

Malla, R/o Ganastan, Tehsil Sonawari, District Bandipora, under Section

8 of the Jammu and Kashmir Public Safety Act, 1978, to prevent him

from acting in a manner prejudicial to the security of the State. This order

of detention is challenged by the detenu through his brother, Mohammad

Yousuf Malla.

02. The contention of the detenu is that the impugned order of detention

has been passed by the Detaining Authority without any application of

mind, as the procedural safeguards have not been complied, thus,

rendering the order of detention legally and constitutionally unsustainable

in law.

03. Counter affidavit has been filed by the respondents and record has

also been produced. The respondents, in their counter affidavit, have

refuted the averments made in the petition. It is stated that the order of

detention has been passed after carefully examining the activities,

record/material of the detenu. The respondents have complied with all the

constitutional and procedural safeguards.

04. Heard learned counsel for the parties and perused the record.

05. The order of detention has been questioned primarily on these

grounds; (i) That the detenu has not been furnished all the material, on the

basis of which grounds of detention were framed and detention order was

issued. (ii) The representation of the detenu has not been considered and

decided in any manner. (iii) The grounds of detention have not been read

over and explained to the detenu in the language he understands nor the

translated copies of the same have been provided to him. (iv) There is lack

of application of mind by the Detaining Authority while framing the

grounds for passing the order of detention.

06. Perusal of the detention record reveals that the detenu has been

furnished copies of detention order (01 leaf), notice of detention (04

leaves), dossier of detention (nil), copies of FIR, statement of witness and

other related documents (nil), (total 06 leaves). It is apparent from the

receipt and execution report which is a part of the record that a copy of the

police dossier and other related material has not been supplied to the

detenu. The detenu has been hampered by non-supply of these documents

to be able to make an effective representation.

07. The Detaining Authority has recorded its satisfaction with regard to

sufficiency of grounds of detention only on the basis of the dossier placed

before it by the Sr. Superintendent of Police, Bandipora on 07.04.2022.

This has not been supplied to the detenu, along with other material relied

upon by the Detaining Authority.

08. The detenu must know what material was considered and relied

upon by the Detaining Authority while forming its opinion that detention

was necessary. It is only when he considered all the material and

understands its contents that he can made an effective representation but

failure to supply this material deprives him of his right to make an

effective representation which renders the detention illegal and

unconstitutional.

09. Reliance has been placed on the judgment rendered in 'Sophia

Ghulam Mohd. Bham Vs. State of Maharashtra and others', (1999) 6

SCC 593, relevant are Paras 12, 13 and 14, wherein, the Hon‟ble Apex

Court observed 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. There should 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 there should 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."

This has resulted in infraction of Constitutional and statutory

safeguards guaranteed to him under Article 22(5) of the Constitution of

India and Section 13 of the J&K Public Safety Act for making an effective

and purposeful representation.

10. In 'Ibrahim Ahmad Batti v. State of Gujarat', (1982) 3 SCC

440, the Apex Court, relying on its earlier judgments in 'Khudiram Das

vs. State of West Bengal and others', 1975 SCR (2) 832, '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".

11. In view the law laid down in the aforementioned cases and applying

the same to the facts of this case, it is clear that the detenu has been

deprived of his right to make a meaningful representation against his order

of detention. The order of detention has been passed by the District

Magistrate Bandipora, who has passed the order after recording his

satisfaction on the basis of dossier and other material placed before him

by the Senior Superintendent of Police, Bandipora, which they have failed

to provide to the detenu which has resulted in the infraction of rights

guaranteed to him.

12. It is also submitted that the detenu was detained under the

provisions of Jammu and Kashmir Public Safety Act, 1978, in the year

2017 and later on was released on 10.04.2018 and subsequently was again

detailed under the provisions of PSA on 12.01.2019 and was released on

19.07.2019. The Detaining Authority, while passing the order of detention

against the detenu dated 07.04.2022, has relied upon the FIRs and

material, on the basis of which earlier orders of detention were passed. It

is well settled that if an order of detention is passed on the basis of

grounds or FIRs on which his detention order has been quashed or

revoked or has expired, the same cannot be used for detention of the

detenu under the provisions of the PSA again, as this would render the

detention void. It is also submitted that there were no fresh grounds for

detaining the detenu after he was released from detention on 19.07.2019.

The respondents have not rebutted to the averment made on this ground

nor placed any material on record with regard to the submissions made.

The fact that the detention order has been passed on the last FIR in which

the petitioner was involved was of the year 2018, and there are no fresh

facts for passing the detention order, as held in „Chhagan Bhagwan

Kahar vs. N.L. Kalna and others', AIR 1989 SC 1234. Therefore, this

fact also renders the detention order unsustainable.

13. In view of the aforesaid discussion, there is no need to advert to

other grounds raised in this petition.

14. Keeping in view the aforesaid facts and circumstances, the law as

laid down by the Apex Court and also the fact that the respondents have

not adhered to legal and Constitutional safeguards, this petition is

allowed. The detention order No. 08/DMB/PSA of 2022 dated 07.04.2022

passed by the District Magistrate, Bandipora, is quashed. The detenu-

Abdul Samad Malla, S/o Abdul Rehman Malla, R/o Ganastan, Tehsil

Sonawari, District Bandipora is directed to be released from the custody

forthwith provided he is not required in any other case.

15. Detention record be returned to learned counsel for the respondents

by the Registry.

(Sindhu Sharma) Judge

Srinagar:

09.05.2023 Michal Sharma

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