Furqan Ahmad Shah vs UT Of J&K And Anr

M.A.Chowdhary, J

District Magistrate, Pulwama (hereinafter called „Detaining Authority‟) in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. 42/DMP/PSA/21 dated 18.10.2021 (for short ‘impugned order’), in terms whereof the petitioner namely Furqan Ahmed Shah S/O Saif-ud-din Shah R/O Midoora Tehsil Awantipora, District Pulwama (for short „detenue‟) was ordered to be detained and lodged in Central Jail, Jammu.

The impugned detention order has been challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13(1) of the J&K Public Safety Act, 1978.

It is being pleaded in the petition that the detaining authority-respondent No.2 has not attributed any specific allegation against the detenue. Furthermore, it is stated that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It is also stated that the material which formed basis of the grounds of detention and consequent order of detention has not been provided to the detenue. It is also the submission of learned counsel for the petitioner that the order of detention and the connected documents annexed with the petition clearly show violation of rights of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.

The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the „security of the State‟. It has been averred in the reply that the detaining authority has followed the provisions of J&K Public Safety Act and the detenue has been detained only after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. It is further stated that the contentions of the detention order/warrant and the grounds of detention were read over and explained to the detenue in the language which he fully understood and in lieu whereof the detenue subscribed his signatures on the execution report. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit.

Heard learned counsel for both the sides at length, perused the record and considered.

Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main thrust of challenge to the impugned order of detention is that the grounds of detention are vague and cryptic, inasmuch as the material particulars of the shooters of banned organization TRF, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention.

On perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. There is no mention of the particulars of the place, the identity of the persons alleged to have received support of the detenue and the particulars of the period in the grounds of detention. These grounds, being vague and lacking in material particulars, as such, the detenue could not make an effective representation against his detention, on the basis of these vague allegations.

The requirement of law is that whole of the record, on which the detention order is based, has to be made available to the detenue in the language that he understands. As per the execution report, he has been furnished copy of detention order (1 leaf), notice of detention (1) leaf, grounds of detention (03) leaves, dossier (Nil) , copies of FIR , statement of witnesses and other related documents ( Nil) in total (05) five leaves against proper receipt. Dossier which is the summary of allegations/accusations against the detenue to base his detention has not been supplied to him, incapacitating him to make an effective and meaningful representation. The detenue, thus cannot be said to be provided with whole of the record which based his detention, so as to make an effective representation. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5)of the Constitution. Thus, the detention order is illegal and unsustainable. In my aforesaid view, I am fortified by the judgments of the Supreme Court in the case of Jahangir khan FazalKhan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590 and Abdul Razak Nanekhan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265.

The detention order passed on 18.10.2021 by the detaining authority was executed through Inspector Adil Ashraf No. 338/PAU, EXK-109568 of DPL Awantipora on 19.10.2021 in Central Jail Jammu. As per execution report the material/record was explained to the detenue in Urdu/Kashmiri, the languages he understood. The detenue, however, is not stated to have been furnished the material on which detention order was based in those languages.

Hon‟ble the Supreme Court in a case titled Chaju Ram Vs The State of Jammu & Kashmir, reported as AIR 1971 SC 263, held in Para-9 of the judgment as under:-

“.........The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable-right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the-detenu in his own language was not complied with.”

It shall also be quite apposite to reproduce the following portions from Paras 3 and 5 of the judgment rendered by Hon‟ble the Supreme Court in the case titled “Raziya Umar Bakshi Vs Union of India & Ors.” (AIR 1980 SC 1751):

“3 The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie.

in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands.”

The Hon‟ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC 3051), has also held 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 against the order of detention. 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.”

The non-application of mind by the detaining authority is alsowrit large in view of the fact that the detention order has been framed in a manner that it has not applied its mind but has acted upon the dossier, prepared by the Sr. Superintendent of Police Awantipora only. This is evident from the opening sentence of the order which is reproduced as under:-

“Whereas, Sr. Superintendent of Police Awantipora vide his letter No. Conf/PSA/2021/201-24 dated 17.10.2021 has produced material record, such as dossier and other connected documents ….”

For the foregoing reasons and having regard to the facts of the case and the law applicable discussed hereinabove, this petition is allowed. Impugned order of detention No. 42/DMP/PSA/21 dated 18.10.2021 is, as such, quashed. The detenue namely Furqan Ahmed Shah S/O Saif-ud-din Shah R/O Midoora Tehsil Awantipora, District Pulwama is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).

Xerox copy of Detention record, as produced, be returned to the learned Dy. AG

Disposed of, accordingly.