Asif Ahmad Bhat vs State of J&K & Ors.

By dint of order bearing No.05-DMK/PSA of 2017 dated 20.07.2017 passed by the Respondent No.2-District Magistrate Kupwara, in

exercise of powers vested in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act of 1978),

one Asif Ahmad Bhat@ Molvi S/o Ab. Gani Bhat R/o Shalgund Lalpora(Lolab), District Kupwara, has been detained and lodged in Central Jail,

Kot-Bhalwal Jammu.

The detenue has challenged the said order of detention on grounds that the allegations/grounds of detention are vague and mere assertions of the

detaining authority and no prudent man can make an effective representation against these allegations and can only be defended in a court of law .

That the detention order has been passed after delay of more than ten months from the date the alleged criminal activity attributed to the detenue

which has been made basis for the satisfaction for passing of impugned detention order and during the period of delay no fresh activity has been

attributed to the detenue. The unexplained delay has snapped the proximity of the detention order with the time its alleged requirement arose; that

the detenue was already admitted to bail in the cases mentioned in the grounds of detention and he was released from custody thereof some six

months eight months ago ;That as per the order of detention the detaining authority has perused only police dossier and the statements under 161

CrPC meaning thereby the bail orders have not been placed before the detained authority nor the detaining authority has not perused the case

diaries of the cases mentioned in the grounds of detention .That the detenue was already under preventive custody in terms of Section 107 CrPC

and he was released from custody after furnishing the requisite bond. This relevant information has not also been placed before the detaining

authority and hence on this ground also the detention order is legally bad and deserves to be quashed. That the detaining authority has not

prepared the grounds of detention itself, which is pre-requisite before passing any detention under the Act by the detaining authority. It is apt to

mention here that the grounds of detention are replica of the police dossier and where the grounds of detention are replica of the police dossier, the

order passed thereon is totally illegal and unconstitutional.That the detention order is illegal and unconstitutional as the detaining authority has

mentioned that the detenue be detained for maximum period in the grounds of detention. That the respondent No. 2 has not furnished the relevant

material like copy of dossier as per record furnished to the detaining authority by police and relief upon by the detaining authority for passing the

order of detention, nor the relevant material, like coy of FIR, Statement U/s 161 CrPC, seizure memos, bail orders of the cases as mentioned in

the grounds of detention, has been furnished to the detenue to enable him to make an effective representation by giving his version of facts

attributed to him and make an attempt to dispel the apprehensions nurtured by the detaining authority concerning alleged involvement of the

detenue in the alleged activities, against the said order to the competent authority since filing of an effective representation is a constitutional right

and to enable the detenue to file such a representation it is necessary to provide him the copies of the dossier, connecting documents and the

material and as in the instant case respondent no. 2 has not provided any such material to the detenue therefore the constitutional rights guaranteed

to the detenue under article 22(5) of the constitution of India stands infringed for that reason also the detention of the detenue is legally bad and

liable to be set aside. That the detenue was not informed that he has a right to make a representation against his detention order to the detaining

authority nor the respondents disclosed him to him before who authority of Government he can make the representation, and neither the

respondents disclosed him the actual detention order, which is in total violation of the rights of the detenue as guaranteed under Article 22 of the

constitution and Section 13 of Public Safety Act. State has filed objection, thereby stating that petitioner has been involved in anti-national activities

and die hard worker of huriyat; he is motivating he youth for stone pelting in order to disrupt public peace; he is involved in many FIRs all

pertaining to years 2016;that he is in repeatedly conducts himself in activities which are highly prejudicial to maintenance of public order. That all

procedural formalities has been complied. I have considered the rival contentions. The order of detention dated 20.7.2017, reveals that it has

passed by District Magistrate Kupwara on the dossier sent by SSP with regard to activities of petitioner. District Magistrate has passed the order

of detention in terms of section 8 (1) (a) (i) read with clause (ii) of sub section (2) of section 8 of PSA in order to maintenance of public order. This

order was forwarded to SSP along with other documents on which detention order was based, for execution in terms of section 9 of Act. On the

same day notice in terms of section 13 of Act was issued by District Magistrate , which reads as under :-

OFFICE OF THE DISTRICT MAGISTERATE KUPWARA

Asif Ahmad Bhat @ Molvi

S/o Ab Gani Bhat

R/o Shalgund Lalpora (Lolab)

District Kupwara.

No. DMK/PSA/2017/102-06

Dated: - 20.07.2017

Subject: Notice regarding detention under the J&K Public Safety Act 1978.

Sir,

Whereas, you have been detained vide this Office Order No. order No: 05-DMK/PSA of 2017 dated 20.07.2017 made by me

under the provisions of section 8 of the J&K public Safety Act 1978.

Now, therefore, in pursuance of Section 13 of the said Act, you are hereby informed that your detention has been ordered on the

grounds specified in Annexure ""A"" to the orders mentioned herein above. You may inform the Home Department, J&K,

Government, if you would like to be heard in person by the Advisory Board.

You may make a representation to the Government against the said Detention Order, if you so desire.

District Magistrate

Kupwara

Bare perusal of this notice, it is evident that petitioner has not been asked to make representation to detaining authority. As per counsel for

petitioner non communication of the fact that petitioner could make a representation to detaining authority rendered detention order non-est in eyes

of law.

I have considered this aspect of matter and law on the subject. As per section 19 of Act, without prejudice to section 21 of general clause Act, a

detention order can be revoked or modified at any time by Government, notwithstanding that order of detention has been passed by officer in

terms of section 8 of Act. Further any order passed by District Magistrate is subject to approval of Govt. not later than 12 days from the date of

order, in terms of section 8(4) of Act. However this will not bar the detaining authority to review its order on representation made by person

against whom order is passed in terms of section 21 of general clause Act.

In State of Maha rashtra v. Santosk Shanker 2000 7SCC 463 , it is held as under :-

It would also be appropriate to notice that even in Raj Kishore Prasad vs. State of Bihar (1982) 3 Supreme Court Cases 10, though the Court did

not entertain the contention that detaining authority under the provisions of National Security Act has a right to consider the representation on the

ground that the order of detention had been approved by the State Government yet it had been observed that constitutionally speaking a duty is

cast on the detaining authority to consider the representation which would obviously mean that if such representation is made prior to the approval

of the order of detention by the State Government. This being the position, it goes without saying that even under the Maharashtra Act a detenu

will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State

Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority

would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure

would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High

Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed.

The provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-loggers, Drugs Offenders and Dangerous Persons Act,

1981, are similar to that of J&K PSA . Therefore non communication to the detenu that he has a right of making a representation to the Detaining

Authority constitutes an infraction of a valuable right of the detenu under Article 23(5) of the Constitution, and as such, vitiates the order of

detention. As the detention order suffers from this inherent defect, so there is no need to discuss ,others grounds taken in this petition. Hence this

petition is allowed and detention order assed against petitioner is quashed. Petitioner be set free if not required in any other case.