Mohamad Abass Dar vs State of J&K & Ors.

By dint of order bearing No.15/DMA/PSA/DET/2016 dated 10.08.2016 passed by the Respondent No.2/District Magistrate Anantnag, 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 Mohammad Abass DarAlias Abass KachrooS/o SonaullahDar R/o Bimdoora Tehsil Kokernag, District Aantnag ( petitioner herein ), has

been detained and lodged in Jail Kathua.

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

assertions of the detaining authority and no prudent man canmake an effective representation against these allegations and can only be defended in

a court of law; that the detaining authority has not spelled out the compelling reasons for the detention of the detenue which has forced the detaining

authority to pass the detention order, reason being normal law was sufficient to prevent the detenue from indulging in the activities prejudicial to the

security of the state; that detenue was not given an opportunity to make a representation as in terms of law the detenue has a right to make

effective representation and being illiterate person the detaining authority has not informed the detenue that has a right to make representation to the

Govt. which in the instant case has not been done; that from 07.07.2017 the detenue has been kept in the Police station Kokernag and on

20.07.2017 he was shifted to District Jail Kathua. In the police station the SHO concerned has given the order of detention, communication dated

10/08/2016 and 11/08/2016 along with the grounds of detention without any other material, nor the detenue was made to undergo the grounds of

detention in the Kashmiri language which he understands fully; that there is delay in the execution of the detention order, the detention order has

been executed after eleven months when under law it has to be executed within twelve days, the detenue was available with the respondents but

still when they have not executed the detention order; that the detenue was under Police custody and also in judicial custody in the month of

December 2016 in the cases registered against him for which he was granted bail by the competent court; that in the grounds of detention and in

the detention order the detaining authority has not indicated as to the detenue has got bail in many FIRs which clearly indicates non-application of

mind on part of the detaining authority; that respondents have not provided all the material including on the basis of which detention has been

ordered in order to make effective representation which renders the detention order illegal; that the material including the FIR mention in the

detention order, statements under section 161 Cr.PC, and seizure memos have not been communicated along with the grounds of detention as is

envisaged under law. The material so with-held by the respondents could not make the detenue competent to make effective representation.

Respondents despite direction did not file any counter affidavits. I have considered the rival contention. The impugned detention order in terms of

section 8 of the J&K Public Safety Act has been passed on 10.8.2016 by District Magistrate Anantnag on the dossier and other connected

documents sent by SSP Anantnag vide his letter dated 8.8.2016; this detention order was forwarded to SSP Anantnag for execution in terms of

section 9 of the Act. Vide order of detention (supra) , the District Magistrate vide order no. 383-86/DMA /PSA /JC/2016 dated 10.8.2016

asked detune to make representation to detaining authority and for informing home department to be heard by Advisory Board in person , in terms

of section 13(1) of Act. This order of detention along with grounds was sent to Dy.S. P DAR DPL Anantnag for execution vide dated

11.8.2016.This order was got executed after more than 11 months, as is evident from extension of detention order passed by Home department

vide order dated 23.10.2017. The said order reads as under:-

Subject : Extension in detention period of of Mohammad Abass Dar @ AbassKachroo S/o Sonaullah Dar R/o Bimdoora,

Tehsil Kokernag, District Anantnag,

Reference; letter no. CID /BR//107/DETT/2017/2662 dated 10.10.2017

Govt. Order No. Home/PB-V/2021 of 2017 dated 23.10.2017

Whereas, District Magistrate Anantnag, in exercise of powers conferred u/s 8(1)(a)(i) of the J&K Public Safety Act, 1978, vide

order No. 15/DMA/PSA/DET/2016 dated 10.08.2016 has ordered the detention of Mohammad Abass Dar @ AbassKachroo S/o

Sonaullah Dar R/o Bimdoora, Tehsil Kokernag, District Anantnag, with a view to prevent him from acting in any manner prejudicial

to the maintenance of public order and directed his lodgment in District Jail, Kathua, and

Whereas, the Government vide order No. Home/PBV/ 592 of 2016 dated 17.08.2016 approved the order dated 10.08.2016

issued by the District Magistrate, Anantnag, and the said order came to be executed on 26.07.2017 and

Whereas, on receipt of opinion from the Advisory Board, the Government vide order No. Home/PB-V/1690 of 2017 dated

06.09.2017, confirmed the aforesaid Order dated 10.08.2017 and IGP CID vide his above quoted reference has recommended

extension in the period of detention on respect of the above detenue under the aforesaid Act.

Now, therefore in exercise of powers conferred by section 8(1) (a) (i) read with clause (a) of sub-section (1) of Section 18 of the

J&K PSA, 1978 as amended in 2012 the Government hereby directs that Mohammad Abass Dar @ AbassKachroo S/o Sonaullah

Dar R/o Bimdoora Tehsil Kokernag District Anantnag, be detained for a further period of three months and lodged in District Jail,

Kathua.

Main thrust of argument of counsel for petitioner is that there is ample delay of 11 months in execution of order of detention, which makes the

order detention illegal and incompetent. He has categorically stated in petition that detune was in jail in FIR Nos.125 and 127 /2016 and he was

released on bail subsequent to the passing of detention order; I have seen file, there are photocopies of bail orders, which are dated 30.12.2016

and 27.12.2016 respectively , so petitioner was very much available to police, then why the detention order was not executed on petitioner in

reasonable time, there is no plausible reasons . Since there is no counter affidavit,so this delay has remained unexplained.

In Shafiq Ahmad v. District Magistrate, Meerut and Ors., reported at AIR 1990 SC 220, it is held as under;-

To shift the blame for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real

belief about the conduct of the petitioner but only raising a red herring. This question was examined by this Court in Nizamuddin v.

The State of West Bengal, [1975] 2 SCR 593 . The question involved therein was under s. 3(2) of the Internal Security Act, 1971.

There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and the Court

considered that unless the delay was satisfactorily explained, it would throw considerable doubt on the genuine- ness of the subjective

satisfaction of the Distt. Magistrate recited in the order of detention. Mr. Justice Bhagwati, as the learned Chief Justice then was,

speaking for the Court observed at page 595 of the report that it will be reasonable to assume that if the Distt. Magistrate was really

and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a

view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the

petitioner immediately after invoking of the order of detention, and the petitioner would not have been allowed to remain at large for

such a long period of time to carry on his nefarious activities. It is, however, not the law that whenever there is some delay in arresting

the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own

peculiar facts and circum- stances. In this case, from the facts and the circumstances set out hereinbefore we find no reasonable or

acceptable explanation for the delay. In a situation of communal tension prompt action is imperative. It is, therefore, not possible for

this Court to be satisfied that the District Magistrate had applied his mind and arrived at ""real"" and ""genuine"" subjective satisfaction

that it was necessary to detain the petitioner to ""prevent"" him from wrong doing. The condition precedent, therefore, was not present.

But as Justice Chinnappa Reddy explained in Bhawarlal Ganeshmalji v. State of Tamil Nadu & Anr., [1979] 2 SCR 633 at page 638

that there must be ''live and proximate link'' between the grounds of detention alleged by the detaining authority and the avowed

purpose of detention, and in appropriate cases it is possible to assume that the link is ''snapped'' if there is a long and unexplained

delay between the date of the order of detention and the arrest of the detenu.

Further Division Bench of this court in LPA No. 17/99 titled Ghulam Rasool Shah Vs. State and others decided on

10.8.99 it has been held that

In the present case the detenue was available with the executing agency, being lodged in judicial custody in connection with a

criminal case. No explanation has been tendered for the delayed execution of the order of detention. Therefore, there is a reasonable

ground to think that the delay in execution of the detention warrant was occasioned by the respondents deliberately to gain time and

to ensure that the detenue is kept in custody for a longer period of time. This object, as in the case at hand, can be achieved by

respondents by a simple way. The detenue is first kept in custody in connection with criminal case for along a period as can be. While

the execution of the warrant of detention is kept pending. As and when the executing agency apprehends that the accused detenue is

likely to be bailed out, or considerable long period has elapsed since the date of issue of the detention order, they execute the

detention warrants at their whim and will. Thus their object of prolonging the custody/detention of a citizen is achieved. This is simply

malafide on the part of the concerned authorities. Situations are conceivable, as rightly observed by brother Khan J. in the judgement-

(supra) where detaining authority may have reasons for not executing an order with reasonable dispatch. It may be difficult and even

impossible in certain cases, e.g. where the person to be detained is absconding or concealing himself. In such cases delayed execution

may be justified. But where a detenue is available with the respondents, any delay, morose unexplained, in execution of the detention

warrant tantamount to manipulations on the part of the detaining authority as well as the executing agencies. Where there is

unexplained, or even unsatisfactory, delay between the date of order of detention and the date of its execution such a delay would

throw a serious and considerable doubt on the genuiness of the subjective satisfaction of the detaining authority, leading to a legitimate

inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenue with a view to

preventing him from acting in a prejudicial manner. That being so, the detention of the detenue in the instant case is rendered illegal...

In view of above law only on this ground, the detention order is liable to be quashed. Since another important ground has also been taken, which

require some deliberations. It has been stated that petitioner was not provided with relevant material including the FIR mention in the detention

order, statements under section 161 Cr.PC, and seizure memos have not been communicated along with the grounds of detention as is envisaged

under law. The material so with-held by the respondents could not make the petitioner to make effective representation.

Since there is no counter affidavit filed by respondents, so pleading in this regard is taken as proved. Law in this regard is well settled in AIR 1999

SC 3051 in case titled Sophia Gulam Mohd. Bham v state of Maharashtra, wherein it is held that;-

Now, an effective representation can be made against the order of detention only when copies of the material documents which were

considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed

was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it

can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid

down inArticle 22 (5) of the Constitution which provides as under :

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making

the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him

the earliest opportunity of making a representation against the order.

The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided

the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that

order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights

guaranteed to the person detained by this clause of Article 22and if any of the rights is violated, in the sense that either the grounds

are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become

bad. The use of the words ""as soon as may be"" indicate a positive action on the part of the Detaining Authority in supplying the

grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the

detenu. The use of the words ""earliest opportunity"" also carry the same philosophy that there should not be any delay in affording an

adequate opportunity to the detenu of making a representation against the order of detention. 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 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 words ""grounds"" used in clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on

which those facts or conclusions which constitute ""grounds"" are based. In Prakash Chandra Mehta vs. Commissioner & Secretary,

Govt. of Kerala & Ors. AIR 1986 SC 687 = (1985) Supp. SCC 144 = (1985) 3 SCR 697, in which an order of detention was

passed under Section 3 (1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, this Court, while

examining the concept of ""grounds"" used in Article 22(5), observed that the word ""grounds"" has to receive an interpretation which

would keep it meaningfully in tune with the contemporary notions. It was explained that the expression ""grounds"" includes not only

conclusions of facts but also all the ""basic facts"" on which those conclusions were founded. The ""basic facts"" are different from

subsidiary facts or further particulars.

The order of detention, in the instant case, is based only on one ground which is to the effect that Bham Faisal Gulam Mohammed

was, on 10.8.1997, held at the Mumbai Airport and on his search being taken, he was found in possession of Diamonds which he

was trying to smuggle out of India.

As pointed out earlier, copies of the documents which were seized on a search made at premises No. B/13, Sikkanagar, V.P. Road,

Mumbai-400 004, admittedly considered by the Detaining Authority, were not given to Bham Faisal Gulam Mohammed. On a

perusal of the documents referred to in the grounds of detention, the Detaining Authority had come to the conclusion that Bham Faisal

Gulam Mohammed was acting as a ""carrier"" for persons who were the king-pins, financiers and organisers of the whole smuggling

activities. This inference was drawn by the Detaining Authority on the basis of the documents referred to in grounds 13 and of the

detention order. The Bombay High Court, before which the question of non-supply of documents was raised and the order of

detention was challenged on grounds, inter alia, that requirements of Article 22 (5) were not complied with, relied upon the affidavit

of the Detaining Authority and found that the documents referred to in Paras 13 and 14 of the grounds were not to be supplied to the

detenu and there was no infraction of subclause (5) of Article 22 of the Constitution.

Thahira Haris V. Government of Karnataka, reported in AIR 2009 SC, 2184, held as follows:

There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer

to all the grounds since on the ground of not supplying the relied upon documents, continued detention of the detenue becomes illegal

and detention order has to be quashed on that ground alone.

Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in

pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents,

statements and other material relied upon in the grounds of detention without any delay. The predominant object of communicating

the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his

detention.

On this ground alone, the impugned order of detention is liable to be set aside. Accordingly, the instant Habeas Corpus petition is

allowed, order of detention bearing No.139-DMG/PSA/2016 dated 29th September, 2016 as extended vide Government Order

No. Home/PB-V/2937/2016 dated 30th December, 2016 is, hereby, quashed. The respondents are directed to release the detenue,

namely, Waseem Ahmad Sofi S/o Late Manzoor Ahmad Sofi R/o Kondbal Manasbal Safapora, Tehsil Lar, District Ganderbal, from

preventive custody forthwith, if not required in any other case.

Procedural requirement are the only safeguards available to a detenue; 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. Procedural laws especially in

criminal administration of justice has to be complied strictly.

In view of what has been discussed above and law on the subject, the detention order bearing No.15/DMA/PSA/DET/2016 dated 10.08.2016

passed by the respondent No.2/District Magistrate Anantnag, 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 Mohammad Abass Dar Alias Abass Kachroo S/o Sonaullah Dar R/o

Bimdoora Tehsil Kokernag, District Aantnag and subsequent order of extension in detention period Govt. Order No. Home/PB-V/2021 of 2017

dated 23.10.2017, are set aside. Detenue to be set free if not required in any other case.