Mohammad Shafi Shaikh vs State Of Jammu & Kashmir And Ors

Detenu, Mohammad Shafi Shaikh son of Ali Mohammad Shaikh resident of Meemendar, Shopian, District Shopian, through his father seeks quashment of detention order no. 145/DMS/PSA/2018 dated 17.12.2018, purporting to have been passed by District Magistrate, Shopian, with consequent prayer for release of the detenu forthwith.

The petitioner-detenu has challenged the order of detention on the following grounds:

"a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already facing trial in FIR no. 352/2018.

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

e) that detention order has been passed in violation of the constitutional safeguards and relevant provisions of J&K Public Safety Act 1978, on this ground also the detention order is bad in law and deserves to be quashed.

d) the grounds were not furnished to the detenu in a language under stood by him"

Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition.

Heard learned counsel for the petitioner as well as the learned counsel for the respondents, perused the writ records. Detention record has been produced.

Learned counsel for petitioner has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was already under custody and has not applied for any bail, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the maintenance of public order.

It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for the petitioner-detenu in order to strengthening his submission referred to and relied upon; AIR 1997 SC page 137; AIR 1980 SC page 1751 (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr.

The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated.

Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to one such judgment of the Supreme Court herein, "In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440", the Apex Court, relying on its earlier judgments in Khudiram Das v State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, in paragraph 10 of the judgment, has held as under:

"Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution".

In Khudiramcase (supra), the Apex Court has explained what is meant by „grounds on which the order is made‟ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.

Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the detenu was not supplied the materials relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of grounds of detention. No other material / documents, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention.

Accordingly, the detention order no. 145/DMS/PSA/2018 dated 17.12.2018 is quashed and detenu Mohammad Shafi Shaikh son of Ali Mohammad Shaikh resident of Meemendar, Shopian, District Shopian, is directed to be released from preventive custody forthwith. Detention record be returned to learned AAG.