Ishfaq Ahmad Rather vs State of J & K

Detenue Ishfaq Ahmad Rather was arrested by the police station Rainawari on 13.07.1998 as arms and ammunition were recovered from his

possession. Case as FIR No. 76 of 1998 under section 7/25 Indian Arms Act was thereon registered against him.

While he was in custody, the District Magistrate, Srinagar directed vide the impugned order No. DMS/PSA/95 dated 11.09.1998 his

preventive detention for a period of ten months. The impugned order states that preventive detention is necessitated to prevent the detenue from

acting in any manner prejudicial to the security of the state. The grounds of detention recite that being a local trained militant of banned

organization, Hizbul Mujahideen, the detenue got motivated to join the militancy and acquire training in handling of arms and ammunition. He was

thereafter provided a gun and designated as a platoon commander. The grounds of detention go to show that the detenue took part in June, 1996

in an action on BSF picket at Bararipora, but got arrested so as to prevent him from committing any illegal militant activity. He was released, but he

rejoined the militant out fit, whereafter he was again arrested on 13.07.1998.

The order of detention is challenged on the grounds:

i). that the procedural safeguards prescribed under the J and K Public Safety Act and the constitutional guarantees enshrined in Article 21 and 22

of the Constitution of India have not been complied with/followed by the respondents, which turn has vitiated the order;

ii). that the grounds of detention were not served on the detenue nor was he provided with the copies of the material on which the grounds of

detention were based, resulting in deprivation of making an effective representation, under the statute, against the detention order;

iii), that having been arrested for substantive offence in FIR No. 76 of 1998, the detaining authority betrayed his nonapplication of mind as it has

not been set out in the grounds as to what were the reasons or the circumstances whereon preventive detention was clamped on the detenue when

he was already in custody and had not applied for bails.

The respondents plead, through the counter, that the order of detention was passed on 11.09.1998 and it was approved within the prescribed

time by the government on 15.Q9.1998, whereafter the order was executed on 18.09.1998. It is further pleaded that the grounds of detention

were served on the detenue 18/09/1998, whereafter the case was referred to the Advisory Board, constituted under the Statute, on 22.09.1998

and the Board opined in favour of detention within the prescribed period of time; that is on 12.10.1998. The procedural safeguards and the

constitutional requirements are said to have been complied with as the order and the grounds of detention were communicated to the detenue with

the intimation and information to him that he could make an effective representation, if so desired, against the order.

The record and the pleadings go to show that having been arrested on 13.07.1998 for substantive offence in FIR No. 76 of 1998 P/S Rainwari,

Srinagar, the detenue was in custody of the respondents till 11.09.1998, the date when the order of detention was passed against him. It is

nobody's incase that the detenue had at any point of time, upto the execution of the order of detention i.e. 18.09.1998, applied or secured bails for

the offence (S) in which he had been arrested on 13.07.1998. The detaining authority was aware, on the date it passed the impugned order, that

the detenue was already in custody for substantive offence. The detaining authority has at no place disclosed it as to what were those reasons

which had prompted the authority to resort to preventive detention of the detenue who was already prevented by his custody for substantive

offence, from indulging in prejudicial activities. Nondisclosure of these grounds which prompted or necessitated the passing of the impugned order

makes out that the detaining authority did not apply its mind to the facts or the circumstances in which the impugned order was passed. It is the

subjective satisfaction, on application of mind of the detaining authority that saves the order of detention from being struck down: but where

subjective satisfaction is not the outcome of application of mind, then the order of detention becomes invalid.

It will be fruitful in the aforesaid context to extract the observations of the Apex Court made in the case Abdul Razak Vs. S.N.Sinha

Commissioner of Police and others, AIR 1989 SC 2265:

In Vijay Narain Singh Vs. State of Bihar, (1984)3 CSR 435 at P.459; (AIR 1984 SC 133 at P. 1345), wherein an order of detention under

section 12(2) of Bihar Control of Crimes Act, 1981 was served on the petitioner while he was in jail as an undertrial prisoner in a criminal cases be

enlarged on bail by the High Court but not yet enlarged, it was held that:

It is well settled that the law of preventive detention is a hard law and therefore it should be strictly conserved The law of preventive detention

should not be used merely to clip the wings of an accused who is involved in a criminal prosecution.

Yet in another case reported in AIR 1989 Sc 2274, the Apex Court observed:

The fact that the detenue was in jail at the time the order of detention was made and the possibility of his release from jail being made a ground of

detention was not approved of by this court in Ramesh Yadav Vs. District Magistrate, Etah, (1985) 4 SCC 232; (AIR 1986 Sc 315) and Binod

Singh Vs. District Magistrate Dhanbad, Bihar (1986) 4 SCC 416; (AIR 1986 SC 2090). In Smt. Shashi Aggarwal Vs. State of U.P. AIR 1988

SC 596, this court pointed out (Para 11).

Every citizen in this country has the right to have recourse of law. He has the right to move the court for bail when he is arrested under the ordinary

law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from

moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement

that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the

record that the detenue, if enlarged on bail, would act prejudicially to the interest of public order."" 11,We may now refer to two decisions of this

court under the present Act. In the case of Ab. Razak Abdul Wahib Sheik Vs. S.N.Sinha, Commissioner of Police, Ahmadabad, (1989) 1JT 478

(AIR 1989 Sc 2265) it has been held that the detaining authority must disclose in a case where the detenue is already in jail that there is cogent and

relevant material constituting fresh facts to necessitate making of and order of detention, in that case, as here the detenue was in jail in connection

with a Criminal Case and the order of detention was served on him in jail. The detenues not complicity in earlier incidents was not considered

adequate and the detention under the Act was set aside. !n the case of Ramesh Vs.State of Gujrat (1989)3 JT 279; {AIR 1989 SC 1881), an

order of detention under the act referring to incident which constituted the subject matter of an earlier order of detention vitiated the impugned

order.

On the touch stone of these authoritative judicial pronouncement, the impugned order herein that is based on the disclosed grounds, annexurePl.

cannot stand judicial scrutiny as it lacks in disclosure of that cogent and relevant material which could constitute fresh facts to necessitate the

making of the detention order against the detenue who was already in jail in connection with the criminal offence(S). It is thus rightly contended that

the detaining authority betrayed nonapplication of mind while passing the impugned order and thus the order is vitiated.

The detenue was in custody of the respondents on the date when the order of dentention was passed. Apart from the fact that neither the

impugned order nor the grounds whereon it is based is it disclosed as to what were the reasons or circumstances which necessitated the resort to

the preventive detention, there is another aspect which cannot be overlooked. Assuming that the detaining authority had before it such material,

sufficient in nature, which necessitated the passing of the impugned order against the detenue who was already in custody, yet it was required of the

detaining authority to have not only communicated the grounds of detention immediately after the execution of the order of detention to the detenue

but it was his duty also to inform him of his right of making an effective representation against the order. Section 13 of the Public Safety Act

mandates that when a person is detained in pursuance of a detention order, the authority making the order shall as soon as any he, but ordinarily

not later than five days and in exceptional cases, the too for reasons to be recorded in writing, not later than ten days from the date of detention,

communicate him to the grounds on which the 'order has been made and shall further offer him the earliest opportunity of making a representation

against the order. This statutory provision is the reflection of the constitutional requirement enshrined in Article 22{5) of the constitution of India.

It is thus the date of detention which is relevant to determine whether the compliance to the requirements of Section 13 has been made. The

detenue in the case was already in custody of the respondents. The order came into existence on 11.09.1998. The order was executed, as per

record, one week thereafter i,e. 18.09.1998. It is not in the first place explained nor is it discernable from the record as to what prevented the

execution of the order immediately after it was passed against the person who was already in custody. Now assuming that this lapse does not tell

upon the validity of the order, yet there is another feature which attracts attention. The order was approved by the Government on 15.09.1998

itself. It was executed on 18.09.1998 and it was on the later said that the grounds were allegedly communicated to the detenue. Grounds having

been

communicated to the detenue on IS.09.1998, the information to the detenue as to his right to file representation against the order would become

meaningful only after he had received the copy the grounds of detention. It is, however, intriguing to note from the record that it was on

11.09.1998, that is one week prior to the communication o i the grounds of detention that the detaining authority came to inform the detenue that

he had a right to file a representation against the order of detention. This is no compliance to the mandate of law as the obligation to inform the

detenue of his right to file representation against the detention order can be said to be discharged only after the grounds of detention are

communicated to him. Any information of right of representation before the grounds are communicated is a farce and of no consequence as the

detenue cannot make a representation against the order in the absence of the grounds of detention being communicated to him. The right to file

effective representation against the order is substantially infringed by the lapse Committed in not informing the detenue of his right of representation

alongwith the communication of grounds of detention. Deprivation of the right of representation thus violate the requirement of law. It is on this

ground also, that the order of detention has to be struck down.

There is no escape from the conclusion that the impugned order in invalid and liable to be struck down. It is thus that this petition is allowed

and the impugned order of detention is herby quashed. The detenue shall, if not detained in any other substantial offence, be released from custody

forthwith.