Abdul Aziz Lone vs State of J. and K. and Another

Syed Bashir-Ud-Din, J.—Detenu Abdul Aziz Lone has been detained by District Magistrate Kupwara, vide Order No. DMK/Conf/575-77

dated 21-7-1999, u/s 8 of the Jammu and Kashmir Public Safety Act, 1978. The detenu has been taken in preventive custody on 22-7-1999.

This order of detention is under challenge in this petition.

The petitioner's counsel submits that the detenu has not been supplied the material and documents referred in and relied on in the grounds of

detention. He has been supplied just two leaves forming the grounds without any supporting material. In absence of the aforesaid material and

documents, the source and basis of core and basic facts of the grounds and detention have not been communicated to detenu and thereby he has

been disabled to make a representation against the detention to the Government. Next the counsel submits that by supplying the grounds of

detention in English which language detenu could not understand he has been prejudiced to make any effective representation against the detention.

The representation of petitioner made agaisnt the detention has not been considered, thereby -its constitutional obligation is breached by the State.

The counsel for the State while countering the arguments of the otherside, canvasses that the detenu has been communicated the grounds in

detail. He has not been prejudiced in making representation. The representation made by son of the detenu, referred to by the detenu's counsel has

not been received by the State, therefore, the question of its consideration does not. arise and in fact the detenu has made no representation against

the detention. There are serious charges against the detenu and that the subjective satisfaction of the detaining authority is informed of the

documents and material on record and same is drawn on available information. The detenu is not. only upper ground worker, but also a harbourer

and carrier of the militant groups and in his capacity as Head Constable of Police force his anti-national activities are totally unacceptable and

wholly prejudicial to the security of the State. He was informed of his right to make representation. Para (v) of the Petition reads as under :-

That it is further submitted that the respondents have not supplied to the detenu any material referred and relied by them in the grounds of detention

except two leaves forming annexure 1. It is submitted that even FIR copy and other material relied on has not been supplied to the detenu despite

requests. In absence of aforesaid material the detenu could not make representation against the detention order.

In counter, detaining authority asserts that the grounds of detention were prepared and supplied to detenu, but does not answer the allegation

that the material and document(s) on which the grounds of detention (as reproduced even in counter) is based, was ever supplied to detenu. The

existence of material and document(s) unfolding and projecting the basic core and essential facts and circumstances of the grounds of the detenton

are admitted in para (b) as under :-

That the respondent No. 2, District Magistrate Kupwara received a report in the form of dossier from Superintendent of Police Kupwara. After

going through the dossier and the record placed before the respondent No. 2, the respondent 2nd applied his mind and came to conclusion that the

activities of the detenu are highly prejudicial to the security of the State and accordingly the grounds of detention which are as under were prepared

and read as :-

Obviously, the basic facts and material relatable and encompassing detaining authorities subjective satisfaction comprises of report/dossier of S.

P. Kupwara and some other record (undisclosed). Its non-communication impinges on the basic right of the detenue as enshrined under Article

22(5) and infringes the States obligation of affording effective and meaningful opportunity to detenue to make representation to the Government

against the detention. Notwithstanding, the seriousness and gravity of charge as spelled out in the grounds, the Court cannot act except in

compliance with constitutional imperatives as indicated in Article 22(5). As pointed out by his Lordship Justice Dr. A. S. Anand (as his Lordship

then was) in National Textile Corporation Ltd. Vs. Romesh Chander Aggarwal and Another, that the Court ""...has a delicate task of balancing the

interests of the community at large, as against the interests of an individual....

In Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, , it is pointed out:

...what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any document, statements or other

materials relied upon in the grounds of detenton, they must also be communicated to the detenu, because being incorporated in the grounds of

detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not

therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other

materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of

Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA ACT....

In Naser Ahmad Sheikh v. Addl. Chief Secretary Home 1999 SLJ 241 a Division Bench of this Court to which I was a party it is stated :-

...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the

detaining authority by the concerned SSP. Now here is it pleaded, much less shown, that the copy/copies of these reports of the police on which

the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an

effective representation against the order....

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , the Apex Court in the context of ""communication of grounds"" held at

page 4067 of Cri LJ :--

...The right to be communicated the grounds of detention flow 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 be assailed only

when all the grounds on which the order is based are communicated to 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....

Obviously the dossier/report and record relied in the grounds of detention in terms of the counter not having been supplied to the detenu, the

communication of grounds is incomplete. The constitutional right of communication of grounds includes the right to receive the above documents/

material is infringed/infracted. For failure to supply the same, deteneu would be deemed deprived of the opportunity of making an ""effective

representation. This is a serious infirmity which goes to the roots of the detention and vitiates it.

The contentions that the detenue was not explained the order and grounds in the language which he understood and was not informed of his right

to make a representation is baseless and not supported by any material on record. From record, it is seen that while executing the order and taking

detenue in preventive custody the detenue was served with the order, grounds of two pages and expressly informed of the right to make a

representation against the detention order. The endorsement and receipt on record reveals that the same, were read over and explained to detenue

in Urdu as well as in Kashmiri. He was also given the order of detention as also the above two leaves of grounds and in token he has given receipt

and signed the same. The receipt is attested by Assistant Superintendent of Kotbulwal Jail, Jamrau, where the detenue is held. It is verified and

attested by Superintendent of this jail. All contentions based on non-service of order, non-supply of two page grounds and alleged failure to inform

detenu to make a representation are without basis and wholly devoid of any merit. The contention on this score is overruled.

From record, it is seen that a copy of the representation (Annexure-2) though placed on record is not made by the detenue, but his son Altaf

Ahmad Lone who has also filed this H. C. Petition. There is nothing on record to reveal that, this representation has been in fact sent to the

addressee Chief Secretary or that in fact it was received by the addresee/Government. Merely because, some receipt is pasted on the bottom

margin of this annexure, does not necessarily, in absence of anything more, show that this representation was either despatched or received by the

addressee. This is all the more so, as the record produced reveals that no representation was received by the Government. Besides, the

representation as provided by Article 22(5) of the Constitution and provisions of J. and K. Public Safety Act, is the representation of detenue and

not of a third person, may be a relation of the detenue.

In result, for the aforesaid reason the detention being vitiated on account of the pointed out above legal and constitutional infirmity detention

order contained in Aii-nexure-1, is quashed with direction to respondents/authority/officer having physical corpus of the detenue Abdul Aziz Lone

s/o Mohd Abdullah Lone R/o Khumeriyarj Kupwara, to release him and set him at liberty forthwith in case not required in any: substantive offence

or case, including FIH 99/99, registered at Police Station Kupwara Communicate the order to the concerned Give copy to detenue free of cost.