Mukhtar Ahmad Lone vs U.T. Of J&K And Another

Sindhu Sharma, J

This petition has been filed by Mukhtar Ahmad Lone through his uncle-Lateef Ahmad Lone challenging the detention Order no. 06/DMK/PSA/2021 dated 18.10.2021 issued by the District Magistrate Kulgam, detaining the detenue under Section 8 of the J&K Public Safety Act, 1978.

The detenue has assailed the order of detention on the grounds that (i) the order has been passed without any application of mind; (ii) the procedural safeguards provided to him under the Constitution of India and in terms of J&K Public Safety Act, have not been complied with by the Detaining Authority. (iii) the grounds on the basis of which the Detaining Authority has derived its satisfaction are vague, obscure, ambiguous and are not connected with the detenue and, as such, no effective representation can be made against these allegations, as such the detention is bad; (iv) the detenue had moved a representation, immediately after his detention but the same has not been considered and this has resulted in infraction of the rights guaranteed to the detenue. (v) all the material relied upon by the Detaining Authority, while passing the order of detention has not been supplied to the detenu, thus, the detenue has not been able to make an effective representation; (vi) the grounds of detention have been formulated by the incompetent authority.

Mr. Mubashir Majid Malik, Dy. AG has filed counter affidavit as well as produced the record of detention.

Learned counsel for the respondents submits that the activities of the detenue are highly prejudicial to the security of the State, as such, he was detained to prevent him from such actions. All the statutory and Constitutional requirements have been complied by the Detaining Authority. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been provided to the detenu and he was also informed of his right to make a representation against the order of detention. The grounds of detention were read over to the detenue in the language he understands.

Heard learned counsel for the parties and perused the record also.

The first contention raised by the detenue is that the Detaining Authority has not provided all the material relied upon while passing the order of detention. The detenue has only received the grounds of detention/Notice/letter addressed to the detenu consisting of (ten) leaves, as per the receipt of grounds of detention but the dossier and other material relied upon by the Detaining Authority has not been provided to the detenue. The detention order dated 18.10.2021 reflects that the same is based on the dossier placed before the Detaining Authority by the Senior Superintendent of Police, Kulgam, but the same alongwith the other material was not provided to the detenue. The detenue was thus prevented from making an effective and meaningful representation in accordance with law and his right under Article 22 of the Constitution. In order to make an effective representation, the detenue must know, what weighed with the Detaining Authority while passing the order of detention and non-supply of the same has hampered him from making an effective representation and has rendered the detention unsustainable in law.

Reliance has also been placed on law laid down in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others,AIR 1999 SC 3051, the Apex Court observed as under:-

“13. 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 in Article 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 preventivedetention, 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 22 and 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 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.

Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicated to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention and failure to do so would render the order of detention unsustainable in law as held in AIR 2009 SC 2104.

The next contention raised by the detenue is that the detenue, immediately after his detention order, filed a representation but this representation was not considered by the Detaining Authority till date.

The Hon’ble Apex Court in “Sarabjeet Singh Mokha vs. The District Magistrate, Jabalpur and others”, SCC Online SC 1019, has held as under:

“….Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”

In “KundanbhaiDulabhai Shaikh vs District Magistrate, Ahmedabad and others”, 1996 Cr.LJ 1981, the Court has quashed the detention order only on the ground of delay in disposal of the representation. It was held as under:

“…it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar &Anr., AIR (1982) SC 1548, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days.”

Thus, the order of detention is invalided on the grounds that there is unexplained delay on the part of the Government in deciding the representation of the detenue and the fact that all the material relied upon by the Detaining Authority has not been provided to him, thus, this has resulted in infraction of the detenue’s rights and this also vitiates the order of detention.

In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention order No. 06/DMK/PSA/2021 dated 18.10.2021, passed by the District Magistrate, Kulgam under which detenu-Mukhtar Ahmad Lone, S/o Ghulam Nabi Lone is under detention, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case.

Let the detention record be returned to learned counsel for the respondents by the Registry forthwith.