Alam Bhat vs State of Jammu & Kashmir and Others

Syed Bashir-ud-Din, Judge

The subject, detenue has prayed for Writ of Habeas Corpus in respect of his detention by the state Government. He is detained under order

No. DMS/PSA/52 dated 18.1.2002 passed by District Magistrate Srinagar u/s 8 of the J&K Public Safety Act, 1978. It is alleged that earlier to

this order he was detained under Order No: DMS/PSA/98 dated 25.1.2001, by the very detaining officer Respondent No.2 on grounds stated

thereto. However, the order as also the detention was quashed by this court in HCP No. 27/2001 vide its decision dated 13.11.2001. Yet the

detenu was not released and instead the impugned detention order was again passed on the very grounds on which first detention was quashed by

the court. Neither the impugned detention order nor the grounds, nor material referred in the order was supplied to detenue. The detenue has been

prejudiced to make representation against the detention order. The detenue received covering letter (Annexure-D) informing him of being detained

and that he could make representation to the Government, Though neither the order nor the grounds nor the material was furnished to him, yet he

moved representation (Annexure-G) addressed to Principal Secretary to Government, Home Department bearing the official receipt from Home

Department. The representation was not considered. He was not even informed as to what happened to his representation. Petitioner's counsel has

made submission broadly only on the above three aspects of the case namely i) passing of yet another detention order on the very grounds

adjudicated upon by the court earlier while holding the first detention order vitiated; ii) non communication of the order and grounds and iii) failure

to consider the representation.

Despite the respondents being represented by the Govt. Advocates and Addl. Adv. General, counter has not been filed for last over one year,

notwithstanding, about a dozen opportunities have been taken to file the counter. It has been in this context that the case has come on board for

hearing.

Mr. M.M. Khan, AAG, too is heard. He has produced detention file and same is available with record.

The admitted facts on record are that the detenu has been detained first time under D.M. Srinagar Detention order dated 25.1.2001 (Annexure-

A). This order and the detention was challenged in HC Petition No.27/2001. The writ court on 13.11.2001 quashed the order and the detention

was direction to release the detenue unless required in any other case. However, the detenue was not released. Then the second order was passed

by D.M. Srinagar on 18.2.2002 (Annexure B). This order is under challenge in this petition. The detenue has not been released hereto,

notwithstanding the quashment of first detention order.

Perusal of the grounds of detention of the first detention and the second detention available on record fairly show that out of seven paras

comprising the grounds of detention of the first detention order, quashed by the court, at least five paras have been reproduced and used as

grounds of detention for the second detention order without any fresh material after passing of the first detention order. The grounds given in the

first detention order are ditto reproduced in the grounds of detention of impugned second order. The allegation that the second impugned detention

order is passed on selfsame grounds as in the first detention order is manifestly more than made out on record. No counter or allegations to deny

all this is on record. The record fully supports the submissions on this count. Whether this aspect of the case was placed before detaining authority,

there is no material on record. However, contextually, in V.C. Mohan Vs. Union of India and Others, , it is firmly reiterated:-

.... We wish to state that no placement of relevant materials before the detaining authority by the sponsoring authority is not only a lapse but a

serious lapse on the part of the officials resulting in the order of detention to be declared unlawful and illegal and thus resultantly cannot be

sustained.

In Chotka Hembram Vs. State of West Bengal and Others, in the context of preventive detention, it is observed that a fresh order of detention

can be passed against a person after the first detention order is revoked, provided after date of revocation of expiry of the first order, fresh facts

constitute the grounds of detention. Making of subsequent order in absence of fresh facts would be impermissible as the very premise of the order

subsequent to the first detention would be non existent. If for the same acts repeated orders of detention are passed, the fact would be that for the

same acts a detenue would be liable to be detained for periods in excess of the permissible period under the statute governing the detention,

thereby jeoperdising the freedeom and liberty of a citizen without any reasons or basis permissible under law. Even in Baidya Nath Mandi Vs.

State of West Bengal and Others, this view is reiterated to observe that the fresh order of detention on the same grounds on which the earlier order

was passed is illegal.

In Kshetra Gogoi Vs. The State of Assam, , it is observed that the main requirement for a fresh detention order to be passed is not merely that

the order has to be passed on grounds, but grounds have to be on fresh facts and material which has arisen after the date of expiry of the first

detention order.

In absence of the counter, the allegation that the order of detention with grounds and material is not supplied to detenue thereby prejudicing him

from making meaningful representation to the government against the detention, remains uncontroverted. The allegation has to be taken and

deemed to have been admitted. This apart the impugned second detention order as available from the detention file reads as under:-

Whereas I, Abdul Hamid, IAS District Magistrate Srinagar am satisfied on the basis of records received from Sr. Supdt, of Police CID CIK

Jammu through under Secretary Home Department Civil Secretariat Srinagar vide his letter No:- Home/PVB/106/107/2002 dated 9.1.2002 that

with a view to prevent Shri Masarat Alam Bhat Code Masa S/o Shri Ab. Majeed Bhat R/o Zaindar Mohalla Srinagar, from acting in any manner

prejudicial for the maintenance of Security of the State it is necessary to do so.

As to the records received from Supdt. of Police, CID Jammu, the material on which detention authority's subjective satisfaction for the

detention in question is drawn is not specified or described. The fact is that the report/dossier/ material/documents etc has entered the decisional

process of the detaining authority, resulting in his drawing satisfaction for the detention, culminating in passing of the impugned second detention

order. The file no where shows that this record and material has been at all supplied to the detenue. In such circumstances, it cannot be said that

detenue has been communicated the order of detention as envisaged under law. The detenue has not been communicated the order and grounds as

per constitutional mandate embodied by Article 22(5) of the Constitution of India and as extended by Section 13 of the J&K Public Safety Act,

1978. The detenue cannot be said to have been given an opportunity to make effective and meaningful representation against the detention.

In Sophia Ghulam Mohd. Bham v. State of Maharashtra and others, (AIR 1999 SC 3015), the Apex Court in the context of ""communication

of grounds"" held:-

...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 detenue 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 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.

In Naser Ahmad Sheikh v. Addl. Chief Secretary Home and Anr.(1999 SLJ 241), A Division Bench of this Court, to which I was a party,

observed : -

...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. No where 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 Sub para (d) of para 3, one of the grounds pressed to challenge the detention is the allegation that after receiving the covering letter

(Annexure-E), wherein the detenue was required to make representation to the Government against the detention order, detenue made

representation on 20.02.2002. However, the representation has neither been considered nor disposed of till 23.3.2002 when this H.C. Petition has

been filed. This allegation is supported by Annexure-G, which shows that the representation has been received in the Home Department on

20.02.2002 against proper receipt.

As already observed, counter has not been filed. Yet from detention file, it is disclosed that a counter affidavit without showing the authority of

the person who has sworn the affidavit and without verification of the affidavit is on detention file. For what reason such type of reply affidavit

without being legally and properly sworn and filed in the court formally is retained on record/the detention file by the Govt. or its Advocate, is not

forth-coming from record. Even so, the detention file no-where shows that the representation is not received by the Home Department or on

receipt of the representation it has been disposed of or is still pending before the Government. The record of the Advisory Board constituted u/s

14 of the J&K Public Safety Act, 1978, while examining the matter u/s 15 of the Act, on reference, no where shows that the representation of the

detenue was available with the Board or that it had any occasion to consider such representation. This is so even on 9.3.2002, when the Advisory

Board considered the matter and passed the orders.

The delayed disposal or non consideration or failure to dispose of the representation has the effect of violating the constitutional guarantee of

earlier disposal of the representation.

In K.D. Sheikh v. District Magistrate Ahmadabad (AIR 1996 SC 2998), after referring to number of decisions, Apex court, observed:-

...18. Turning now to the main question relating to the early disposal of the representation., we may immediately observe that this Court, in a large

number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if

there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay

or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention and in that situation, continued

detention would become bad....

In Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, and Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of

Police and Others, , it is held that inordinate and unexplained delay in the disposal of the representation would make the continued detention of the

person illegal and unconstitutional. Same is the observation in Devi Lal Mahto Vs. State of Bihar and Another, .

In Rajammal Vs. State of Tamil Nadu and Another, , the delay of just 5 days has been disapproved in the manner as under:-

We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further

detention of the detenue. The corollary thereof is that further detention must necessarily be disallowed. We therefore, allow this appeal and set

aside the Impugned judgment. We direct the appellant-detenu to be set at large forth.

In result, for the aforesaid view of the matter, the detention is vitiated and no more sustainable. The impugned second detention order

(DMS/PSC/52 dated 18.1.2002) is as such quashed. Respondents/authority /officer having physical corpus of the detenue Masarat Alam Bhat

S/o Abdul Majid Bhat R/o Zaindar Mohalla Srinagar, shall release and set him at liberty from preventive custody unless required in any other case,

offence or matter.

Copy of this order shall be given to detenue free of cost. Registry to take follow up action. Disposed of.

The record produced by AAG is returned to him in open Court.