Bashir Ahmad Rather vs State J&K and Others

The petitioner Bashir Ahmad Wani son of Ghulam Rasool Wani R/o. Nutnusssa, Handwara was detained pursuant to an order of detention

Bering No. DMK/PSA/53 of 2002 dated: 15.3.2002 issued by District Magistrate, Kupwara, and respondent No. 2, under section 8 of the

Jammu and Kashmir Public Safety Act (herein after to be referred to as ""the Act""). Subsequently the order of detention was confirmed by the

government for a period of 24 Months against the detenue who came to be lodged in Central Jail, Kotebalwal, Jammu, The order of detention has

been challenged by the detenu through his father namely, Ghulam Rasool Rather on variety of grounds.

To begin with, it is submitted that the detaining authority is stated to have recorded satisfaction on the basis of allegations levelled in the FIR

referred to in the grounds of detention. According to the learned counsel for the petitioner, this was the only material before the detaining authority

on the basis of which the satisfaction was drawn for passing the order of detention. The detaining authority was, therefore, bound to provide the

material, copies of the FIR seizure memo, disclosure statement, investigation conducted and the other material referred to in the grounds of

detention to the detenue to enable him to make an effective and meaningful representation against the said detention before the competent

authority/Government. It was next contended that the detenu was initially arrested on 13.03.2001 by the security forces and later on booked in

FIR No. 113/2001 Police Station, Kupwara for offence under section 7/25 Arms Act. The detenu was later on released on bail by the court of

competent jurisdiction vide order/docket dated: 13.04.2001. The detention order nowhere points out any subversive activities attributed to the

detenu during the period he remained on bail and till the was taken in preventive custody and thus do not provide any compelling circumstance to

the detaining authority for passing the detention order (for eight months that he was enjoying liberty as a free citizen). This fact having not been

disclosed either in the dossier or in the grounds of detention, it is manifest that that the detaining authority was not made aware of the fact that

detenu was enlarged on bail and the detention order being siletetn about these facts, amounts to total absence of application of mind and renders

the detention illegal. It was further submitted that the grounds of detention being vague, and indefinite also came in the way of the detenu to make

effective representation to be made before the competent authority against his detention.

The respondentdetaining authority has filed the counter. It is submitted in ground (d) therefore that the contents of the warrant and grounds of

detention were served, read over and explained to the detenu. It is further stated that the detenu was informed about his right to make an effective

representation against his detention if he so desired. It was further stated that the detent ion order was drawn due to compelling reasons after

application of mind to the fact that ordinary criminal law was not sufficient to deter the detenu from continuing his activities.

Heard learned counsel for the respective parties and also perused the detention record made available by the Government Advocate.

The detention order dated : 15.03.2002 Order No. SMK/PSA/53 of 2002 dated 15.03.2002

Whereas, I syed Haq Nawaz, District Magistrate Kupwara am satisfied that with a view to preventing Shri Bashir Ahmad Rather SI o Gh. Rasool

Rather R/Q Natnussa Tehsil Handwara District: Kupwara age 26 years from acting in any manner prejudicial to the security of the State, it ii

necessary to do so.

Now, therefore, in exercise of the (powers conferred under section! of the Jammu and Kashmir Pub lie Safety Act, 1978, I, Syed Haq Nawaz,

District Magistrate Kupwara hereby direct that the said Bashir Ahmad Rather S/o. Gh. Rasool Rather R/o. nastnussa Tehsil handwara District

kupwara be detained in District Jail, Kotebalwal for a period of 6 months.

Sd/=

District Magistrate,

Kupwara"".

The aforesaid order on its plain reading nowhere points out the basis of drawing satisfaction by the detaining authority that the detention of the

detenu in preventive custody is necessitated for maintaining the security of the State. The clearly shows that detention order is not based on record

and the satisfaction recorded is without application of mind by the detaining authority. The detaining authority has nowhere, in the grounds of

detention, stated that it was aware of the fact that the detenu has been released on bail in FIR No. 113 of 2001 in which he came to be arrested

about eight months prior to the detention order was served upon him the grounds further do not disclose the details of the activities prejudicial to

the security of the State attributed to the detenu which form the basis of compelling reasons for his detention in preventive custody.

Mr. T. Khaja, Govt. Advocate appearing for the respondents, when taken through the detention order, candidly conceded the fact relating to

the release of the detenu on bail in FIR No. 113 of 2001 in which he stood arrested on 13.03.2001. He also admitted that the grounds of

detention do not disclose the details of the prejudicial activities attributed to the detenu during the period he remained on bail and till his preventive

detenu. An identical proposition came up for consideration before the Apex Court in ""Anant Sakharam Raut v. State of Maharashtra and Anr

(AIR 1987 SC 137) and was held as under:

In our ciwew this is the short manner in which the two cases can be can be disposed of. If the petitioner is found disturbing law and order or

misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail order cancelled One does not

know how the detaining authority would have acted if he was made aware of the above details. We are not satisfied that this is a fit case of resort

to preventive detention. We refrain from refererring to the other grounds urged before us and from examining them. The petition is entitled to

succeed on the first ground

As regards the contention of the detenu that he had not been supplied the material on which the detaining authority based its satisfaction for

framing the detention order. Neither the translated in script of the material has been provided not the grounds of detention read over and explained

to the detenu in the language understood by him so as to enable him to make an effective representative before the competent authority. It is

significant to refer to the receipt of grounds of detention of detention and the same is reproduced as under"".

RECEIPT OF GROUNDS OF DETENTION

Received the grounds of detention from District Magistrate, Kapwara vide his order No. DMK/PSA/53 of 2002 dated: 15.03.2002 consisting

Central Jail Jammu Kotebalwal today on along with copies of FIR No. Dossiers, interrogation report and letter No. DMK/Conf: 41820 dated

15.03.2002. The contents of the grounds of detention were read over and explained to him in English/Urdu/Kashmiri/Language which understood

fully, I, have also been informed that I can I make the representation to the Govt., against my detention order if so desired.

Receipt on its plain reading and on its face value clearly disclosed that grounds of detention consisting one leave was provided along with copy

of the FIR, dossier, and interrogation report to the detenu. It does not, how ever, specifically state as to in which language grounds of detention

were read over and explained to the detenu which he fully understood Contrary to the receipt of grounds of detention referred to above, the

detaining authority in their counter in Para (d) categorically stated that only grounds of detention and the contents of warrant were served, read

over and explained to the detenue and also informed him of his right to make a reprehensive. In reply to para 4 of the petition, the reply filed by the

respondents was that the grounds of detention has been cause to the detenu. This clearly shows that neither the material on which the detaining

authority based his satisfaction for passing the detention order nor the grounds of detention were communicated to the detenu in the language

understood by him nor the translated script of the material in the language understood by the detenu, were supplied to the detenu and thus

prevented him from making representation against his detention. In such circumstances, the detenu cannot be stated to have been communicated

the grounds of etention as mandated by Art 22 (5) of the constitution.

Again in Sophia Ghulam Mohmmad Bham v. State of Maharashtra and Ors., (AIR 1999 SC. 3051), 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 top make a representation can be made and the order of detention can be made 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 there or are supplied to the person detained in his own language........

Similarly when, the grounds or detention disclose the alleged prejudicial activities attributed to the detenu on the basis of the report made

available to the detaining authority and the copies of such reports on which the detaining authority based its satisfaction, were not supplied to the

detenu to enable him to make an effective representation to the Government against the order of detention, has been held to be fatal to continue

detention. Detenu need not show that any prejudice is caused to him. This is because nonsupply of such documents would amount to denial of

being communicated the grounds of detention and to being afforded the opportunity to make a representation against the said orders to the

Government.

The Apex court in ""Powanamnul v. State of Tamil Nadu and Ors"" 1999 (2) SCC 413 held as under:

The amplitude of the safeguard embodied in Art. 22 (5) extends not merely to oral explanation of the grounds of detention and the material in

support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the

detenu. Failure to do so would amount to denial of the right of being communication the grounds and of being afforded the opportunity of making a

representation against the order.

The detaining authority is required to be satisfied only on the basis of the record/material provided/made available by sponsoring authority and

not on the grounds of detention which are distantly formulated by him alone. This clearly exhibits only the recalcitrant attitude of the detaining

authority as to the casual and cavalier manner in which they fiddle with the liberty of the individual and pass detention order without application of

mind.

In view of the aforesaid discussion and the candid concession of Mr. Tassaduq Husain Khaja Government Advocate, when taken through in

the court, I am clearly of the view that the detention order cannot be sustained and is accordingly, vitiated. The impugned order is, accordingly,

quashed. Respondents/the officer having the custody of the corpus of; the detenu shall set him at liberty forthwith provided the detenu namely

bashir Ahamad Rathe son of Ghulam Rasool Wani resident of nutnussa handwara is not required in any other case. The detenu shall be supplied

with the copy free of cost and the order be communicated to the concerned for follow up action, by the registry, Record is returned to

Government Advocated in the open court.