Ab. Rashid Jogger vs State of Jammu & Kashmir and Another

Mansoor Ahmad Mir, Judge

By the medium of this petition, the detention order bearing No. DMP/PSA/PA/12 dated 19.07.2004 passed by District Magistrate Pulwama,

whereby the detenu, namely, Abdul Rashid Jogger stands detained in Kathua Central Jail, has been challenged. The challenge has been thrown on

the following grounds:

That the detenu was already in custody, so there was no need to detain the detenu in terms of the detention order under Public Safety Act and

no compelling reasons have been set out in the order of detention; undue delay has crept in while executing the order of detention; the grounds of

detention and material relied upon have not been furnished to the detenu and script of the same has not been made available to the detenu in Urdu

and Gojri languages.

The respondents have filed counter affidavit. It is profitable to reproduce paras-B and D of the said counter affidavit herein; -

B. That the activities of the detenu were prejudicial to the security of the State, as such was detained under the Public Safety Act, 1978 vide Order

No. DMA/PSA/12 dated 19.07.2004.

D. That under sub Section 4 of section 8 of Public Safety Act, 1978, the respondents have approved the detention order of the detenu on

23.07.2004 well within the stipulated period as prescribed by the Public Safety Act. Consequently the detention warrants were executed and the

detenu was taken in preventive custody on 29.07.2004. The contents of detention order/warrant were reported to have been read over and

explained to the detenu in Urdu and Kashmiri languages which he fully understood and in turn the detenu has put his thumb impression on the

execution warrant. Thereafter, the entire record of the detenu was referred to the advisory Board constituted u/s 14 of J&K Public Safety Act,

1978. The Board after examining the record also heard the detenu in person and approved the action taken by the respondents and advised to

keep the detenu in detention under the provisions of Public Safety Act, 1978.

Heard. Perused record. Considered.

The executing officer i.e. Ghulam Mohi-ud-din, ASI on back of the detention order has reported that the contents of the grounds of detention

have been read over to the detenu in Kashmiri/ Urdu language on 27th July, 2004. The original of the same has neither been filed with the counter

affidavit nor is available on the record. But a Photostat copy of the said document is available on the record. Even the respondents have not

chosen to file affidavit of the executing officer as to whether the grounds of detention have been explained in Urdu or in Kashmiri language. If it has

been explained in Kashmiri language, the detenu is Gojar thus it does not mean compliance. It is not clear in which language, it has been explained.

Mention has been made in para-D of the counter affidavit that the contents of the detention order were reported to have been read over and

explained. What does words ""reported to have been"" mean? Can it be held that it is compliance in terms of provisions of Jammu & Kashmir Public

Safety Act?

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , the Apex Court reiterated and reads 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 detenu to make a representation can be made and the order of detention can he assailed only when all

the grounds on which lie 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

Viewed thus it can be safely held that the detention order is not legally sustainable on this ground alone. Coming to the second ground.

The detaining authority has derived satisfaction in terms of the dossier, FIR and alleged admission/disclosure. The record as well as the counter

affidavit nowhere points to the fact that the copies of the disclosure statement/admission, FIR were communicated to the detenu.

In Mangalbhai Motiram Patel Vs. State of Maharashtra and Others, while focusing on the procedural safeguards and constitutional imperative in

the matter of preventive detention, observed: -

This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The Constitutional imperative indicated in

Article 22(5) are two fold: (1) the detaining authority must as soon as may he, that is, as soon as practicable, after the detention communicate to

the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest

opportunity of making a representation against the order of detention. The right to make a representation implies what it means ""the right of making

an effective representation"". Where certain documents are relied upon in the grounds of detention, the grounds would be incomplete without such

documents. The detenue, therefore, has the right to he furnished with the grounds of detention alongwith the documents relied upon.

In Kamarunnissa and Others Vs. Union of India and another, the Apex Court has held as under: -

It is not sufficient to say that the detenue were not supplied the copies of documents in time on demand but it must be shown that the non-supply

has impaired the detenues right to make effective and purposeful representation. Demand of any or every documents, however, irrelevant it may be

for the concerned detenus, merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal

detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenne must show that the failure to supply

the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slight or in significant it may be in the

present case, except stating that the documents' were not supplied before the meeting of Advisory Board, there is no pleading that it had resulted in

the impairment of his right nor could counsel for the petitioner point out any such prejudice.

Thus on this count also the detention order merits to be quashed.

It is not mentioned in the detention order that the detenu will be released on bail and there are compelling reasons that the detenu may indulge in

any subversive activities. This means that the detaining authority has not applied mind.

The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under; -

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 been engaging the attention of this court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw Vs. District

Magistrate, Burdwan and Another, . To a such proximity we refrain from detaining all those cases except that of Dharmendra Suganchand

Chelawat and another Vs. Union of India and others, wherein a three judge Bench, after considering all the earlier relevant decisions including

Rameshwar Shah (Supra) answered the question in the following words: -

The decision 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) that the detaining authority was aware of the fact that the detenue is already

in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression

'compelling reasons' in the context of making an order for detention of a person already in custody implied that there must be a cogent material

before the detaining authority on the basis of which it must be satisfied that (a) the detenue is likely to be released from custody in the near future;

and (b) taking into account the nature of the antecedent activities of the detenue, 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 awareness of the fact that the detenue was in judicial 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 averments 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. To put it differently, the satisfaction of the detaining authority that the detenue 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.

In another case Amrit Lal and others v. Union of India reported in (2001) 1 SCC 341 their Lordships of the Supreme Court observed; -

In Augustin decision this court also placed strong reliance on an earlier but oft-cited decision of this court in Binod Singh v. District Magistrate

Dhanabad wherein it was held that if a person is in custody and there is no imminent possibility of his being released there from, the power of

detention should not ordinarily be exercised. This court held that there must be cogent materials before the officer passing the detention order that

the detenue is likely to be released on bail. The inference 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 is in this perspective as above, that the recording of the officer concerned in the matter under reference

ought to be noticed and the same reads as below: -

'Even though prosecution under the Narcotic Drug and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal I am satisfied

that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the

likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

It is this reasoning which the Learned Advocate contended that the High Court should have held to be completely erroneous in the matter of

being the basis of an order of detention.

The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in

the reasoning available is the

'likelihood of his moving 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.

While applying the test to the instant case, there must be material before the detaining authority on the basis of which satisfaction can be derived

that detenu was likely to be released on bail in near future. Such material is neither on the file nor with the record made available by the Additional

Advocate General.

Viewed thus the detention order is quashed and the State is commanded to release the detenu forth with provided he is not required in any other

case.