Mehmood Ahmed vs Union Territory Of J&K And Others

MA Chowdhary, J

District Magistrate, Poonch (hereinafter called „Detaining Authority‟) in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short, ‘Act of 1978’), passed the detention Order No. 03/DMP/PSA of 2023 dated 12.04.2023 (for short „impugned order‟), in terms whereof the detenue namely Mehmood Ahmed S/O Talib Hussain R/O Deri Dabsi A/P Kotain Tehsil Mendhar, District Poonch (for short „detenue‟) has been ordered to be detained.

The impugned detention order has been challenged through the medium of the instant petition, being illegal and arbitrary alleging that the Detaining Authority had passed the order exhibiting complete non-application of mind as though he relied upon two cases registered against the petitioner by the police but did not consider as to what had happened to those cases as in one of the case he has been acquitted after trial and another case he had been admitted to bail but the Detaining Authority fail to make any reference of those development in the detention order; that the requisite material on which the detention order was based was not supplied to the petitioner, as such, the detention order is vitiated on that count as the petitioner’s right to make effective representation has been denied; that the detention order and the grounds of detention have been supplied to the detenue in English language which he does not understand and the copy of that material was not available to him in a transcript in a language which he may be understandable to him; that the Detaining Authority has not recorded in the detention order with regard to the period of detention which also shows the non-application of mind; that there is no live and proximate link between the alleged prejudicial activities and the detention order.

Respondents despite several opportunities have failed to file their counter affidavit, however, detention record was produced by the learned Government Advocate for perusal and consideration.

Learned counsel for the detenue, while being heard, makes reference to the grounds of the detention and states that on a cursory look on the same it is manifest that the same are vague; that the detention order has been passed by the Detaining Authority to prevent the petitioner from involving himself into the pre-judicial activities to the security of the State as well as to the public order and such a composite order is not permissible in view of the law laid down by the Apex Court. It is also submitted that the Detaining Authority on the basis of dossier submitted by Senior Superintendent of Police, Poonch without application of mind and without evaluating the allegations alleged against the detenue in the said dossier, copy of which was not even provided to the detenue, proceeded to pass impugned detention order, whereby the detenue has been detained and directed to be lodged in District Jail Poonch. In addition, learned counsel submitted that the allegations levelled against the detenue are totally vague as nothing specific has been stated in the grounds of detention.

In rebuttal, learned GA submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority as well as government, against his detention submitted that the detenue was ordered to be detained for maintenance of ‘public order’ and had he been let free there would have been every likelihood of his re-indulging in criminal activities. He also submits that the power of preventive detention is different from punishment; preventive detention aimed at stopping the illegal activities of an individual which otherwise under common law, both criminal/civil cannot be stopped and the said individual creates a havoc in the society which leads to public disorder, peace, stability. He further submits that the petitioner falls under the category of Section 8 of the Public Safety Act, being a threat to the public order, peace and stability in the society. Learned Government Advocate further submits that in view of the ground taken by the appellant with regard to the fact that the order has been passed on both counts of security as well as public order has been taken care of by the respondents and a corrigendum has been issued by the Detaining authority later-on for treating the detention order having been to prevent him from carrying on the activities against public order.

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

Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority as has been laid down by Hon’ble Apex Court in a case titled Abdul Latif Abdul Wahab Sheikh Vs B.K. Jha &Anr., reported as (1987) 2 SCC 22. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.

The detention record, as produced, reveals that the detenue was involved in following cases:-

i) FIR No.52/2011 U/S 120-B/122 RPC & 7/25 IAA of P/S Mendhar;

ii) FIR No. 130/2016 U/Ss 8/20/22/29 NDPS Act of P/S Nowabad,Jammu;

iii) Preventive measures U/S 151/110/107 CrPC initiated against the detenue and two others at P/S Mendhar on 31.01.2023.

Involvement of the detenue in the aforementioned cases appears to have heavily weighed with the detaining authority while passing detention order.

The detention of the detenue has been ordered on the basis of two FIRs and one Preventive Measures Report U/S 151/110/107 CrPC, out of which, one FIR No. 52/2011 had been lodged in the year 2011 with regard to his involvement in the commission of offences punishable under sections 120-B/122 RPC & 7/25 IAA of P/S Mendhar and another FIR No. 130/2016 with regard to the offences under NDPS Act of P/S Nowabad Jammu, thereafter no FIR had been lodged, however, one Preventive Measures Report u/s 151/110/107 CrPC was lodged at Police Station Mendhar on 31.01.2023. From the perusal of the record it reveals that in case FIR No. 52/2011, the petitioner was acquitted by the Court of learned Principal Sessions Judge, Poonch vide judgment dated 17.08.2018, whereas in case FIR No. 130/2016, the petitioner has been bailed out and the Challan was sub judice in the Court of learned Additional Sessions Judge, Jammu. Live and proximate link between the past conduct of the detenue and the imperative need to detain have to be harmonised to rely upon the alleged illegal activities of the detenue. Old and stale incidents shall be of no use as has been held in “Sama Aruna Vs State of Telangana &Anr.” reported as (2018) 12 SCC 150. Relevant paragraph No.16 is extracted as under:

““16. Obviously, therefore, the power to detain, under the Act of 1986 can be exercised only for preventing a person from engaging in or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain vs State of W.B, this Court observed as follows:(SCC p.535 para 5)

“No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case”.

Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for engaging in such activities”.

Therefore, in the considered opinion of this Court, the detention order, suffers on account of non-application of mind as neither any reference has been made with regard to acquittal of the detenue in the case registered against him in the year 2011 and admitting on bail in the case registered in the year 2016. Also there is no proximate and live link between the impugned detention order passed in 2023, to the cases registered against the detenue way back in the years 2011 and 2016.

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 (01) leaf, notice of detention (01) leaf, grounds of detention (03) leaves and other related documents (01) leaf total six leaves. He has not been provided with copies of dossier of detention, charge-sheets, FIRs and statements of witnesses as well as the material relied upon by the detaining authority under which the petitioner has been detained. Whatever material was supplied to him was in English and no transcript of it was given. The detenue, thus cannot be said to have been provided with whole of the record which was based for his detention, so as to make an effective representation. The failure on the part of the detaining authority to supply material renders detention illegal and unsustainable.

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.

5..........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.”

Vide impugned order, the Detaining Authority has though communicated to the detenue his right to represent against the order to him and the government in Urdu language, but no time limit was communicated, in which, he could make a representation to him, till approval of the detention order by the Government. In a case of National Security Act, titled “Jitendra Vs. Dist. Magistrate, Barabanki &Ors.”, reported as 2004 Cri.L.J 2967, the Division Bench of Hon’ble Allahabad High Court, has held:-

“10. We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the right fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be the grounds of detention.”

The impugned detention order was passed initially to prevent the petitioner from activities prejudicial to the ‘public order’ as well as ‘security of the State’ and later modified by issuance of a corrigendum, restricting the same to the ‘public order’ only. The legal question, in this context, that arises for this Court’s consideration is thus “Whether the concepts of “public order” and “security of state” are distinct and separate and whether they can be used interchangeably?” As has been said by the Hon’ble Supreme Court in “G.M.Shah vs State of J&K”, reported as AIR 1980 SC 494, the expressions “law and order”, public order” and “security of the State” are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State.” Using both the expression of public order as well as security of the State means that Detaining Authority was not sure as to the passing of the order, with application of mind. As such, even on this count, the impugned order is liable to be held, passed illegally and consequently vitiated. The passing of the order on both the accounts of security as well as the public order, is thus, not sustainable in the eyes of law laid down by the Apex Court.

This is another reason, as to why the impugned order would be vitiated since the detenue’s right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to it i.e., till the approval of the detention order by the State Government.

Reproducing the dossier prepared by the Senior Superintendent of Police, Poonch in the order of detention, almost word by word; non furnishing of the whole of the record on which detention order was based; furnishing the material in English and not the language of the detenue; non-application of mind by making no reference to the acquittal of the detenue in one case and grant of bail in other case; and not informing detenue of his right to make representation before the Detaining Authority within the statutory period, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the petitioner and detenue has also been deprived of his fundamental right to make effective and meaningful representation against the detention order to the Detaining Authority and the government.

For the foregoing reasons and the law discussed hereinabove, this petition is allowed. Impugned order of detention No. 03/DMP/PSA of 2023 dated 12.04.2023 passed by the District Magistrate Poonch, is, as such, quashed. The detenue namely Mehmood Ahmed S/O Talib Hussain R/O Deri Dabsi A/P Kotain Tehsil Mendhar, District Poonch, is ordered to be released from the preventive custody, forthwith, provided he is not required in connection with any other case(s).

Detention record, as produced, be returned to the learned GA.

Writ petition is disposed of as allowed, accordingly along with pending application(s), if any.