Muskeen Ali vs State Jammu and Kashmir and Ors.

Petitioner, Muskeen Ali S/o Alia Ditta, R/o Lowang Morah Mathotha, Tehsil Basohli, District Kathua, has been detained in preventive custody

by District Magistrate, Kathua, vide his order No.PSA/57 dated 06052003, under section 8 of the Public Safety Act, 1978 (hereinafter for short

referred to as ""the Act""). The detenue has been detained for a period of 24 months with a view to prevent him from indulging in activities, which

pose a threat to the security of the State. The order of detention, however, has been confirmed by the Government vide order No.Home/PBV/861

of 2003 dated 29062003 under section 17(1) of the Act and the detenue lodged in Central Jail, Kot Bhawal, Jammu. The order of detention has

been challenged by the detenue through Hussain Din on the following grounds:

(1). That when the petitioner was already in custody and facing trial in case under FIR No.39/2002 of Police Station, Bani for offences under

sections 307/34/121/121A/212 RPC, 7/25 Arms Act at the time of his detention order passed by the detaining authority and in absence of any

explanation as to why it was deemed necessary to make the order when the detenue has neither applied for bail nor there was any possibility of

grant of bail, even if applied, in view of the offences under which he was facing trial, makes the order as colourable and deserves to be struck

down.

(2) That the detaining authority having itself fixed the period of detention in its order against its validity of 12 days under section 8(4) amounts to

clear violation of the provisions of sections 15 to 18 of the Public Safety Act and is sufficient to vitiate the order.

(3) That the materials supporting the grounds of detention have not been supplied by the detaining authority to the petitioner to enable him to make

an effective representation to the Competent Authority/Government against the detention order, which reveals that there was a clear breach of

procedural safeguards provided under section 13 of the Public Safety Act as also under Article 22(5) of the Constitution of India, thus, makes the

order invalid and vitiated.

In repudiating the contentions of the petitioner in their counter, the respondents submitted that at the time of the execution of the detention order

on 10052003, its contents were read over and explained to the detenue in the language he understood. The grounds of detention were also

supplied to the detenue against a proper receipt and the detenue was also informed that he could make a representation to the Government against

his order of detention. The case of the detenue was also referred to the State Advisory Board, which also affirmed the detention order for there

being sufficient cause for the detention of the detenue under preventive custody.

It is also stated that the copies of the FIR, dossier and grounds of detention alongwith the detention order were provided to the petitioner and that

there has been no violation of the procedural safeguards provided under the Constitution of India.

I have heard the arguments of the learned counsel appearing for the respective parties and also considered the rival contentions besides perusing

the detention record provided by Mr. B.S. Salathia, senior Additional Advocate General.

The detention order, passed by the detaining authority, is available on detention file though not available on writ file and is read as under:

OFFICE OF THE DISTRICT MAGISTRATE, KATHUA

ORDER NO. :PSAI57

DATED :652003

Whereas, I, B.D. Sharma, KAS, District Magistrate, Kathua am satisfied that with a view to prevent Maskeen Ali S/O Allah Ditta R/0 Lowang

Mohra Mathotha Tehsil Basohli District Kathua from indulging in the activities prejudicial to the security and integrity of the State, it is necessary to

do so;

Now, therefore, in exercise of powers conferred under section 8 of the Jammu & Kashmir Public Safety Act, 1978,1, B.D. Sharma, KAS,

District Magistrate, Kathua hereby direct that said Maskeen Ali be detained in Central Jail, Jammu for a period of twenty four months.

Sd/

District Magistrate

Kathua,

Forwarded in duplicate to the Superintendent of Police, Kathua for execution of the order as provided u/s 9 of the J&K Public Safety Act, 1978.

Notice of the order be given to said Maskeen Ali by reading over the same to him in the language, he knows and by handing over a copy of this

order to said Maskeen Ali under proper receipt.

Sd/

District Magistrate Kathua.

The aforesaid detention order in its plain reading does not show that the District Magistrate recorded his subjective satisfaction based on the

material provided to him by the sponsoring authority. It also does not reveal as to what was the material on the basis of which the detaining

authority thought it necessary to pass an order of detention with a view to prevent the detenue from indulging in activities prejudicial to the security

and integrity of the State. This, according to the learned counsel appearing for the petitioner, amounts to nonapplication of mind by the detaining

authority. His further submission is that the detaining authority has not applied its mind to the material relied upon in the grounds of detention

including the copy of the dossier, copy of the FIR, copy of the seizure memo, copy of the interrogation report besides other material indicated

therein. It is not gatherable from the impugned order that the detaining authority has drawn subjective satisfaction from the material indicated in the

grounds of detention or relied upon the material other than what is indicated therein made available to him by the SSP, Kathua. The grounds of

detention show that the record also included the circumstances and facts which led to the registration of the case and arrest of the detenue in a

regular criminal case under FIR No.39/2002 and certain recoveries of arms and ammunitions during investigation. The detenue was arrested in the

aforesaid criminal case on 07012003 and is in continued custody in the said case. The detenue admittedly has not applied for bail after his arrest in

the criminal case under FIR No.39/2002.

For judging the question as to what should be the measure to test the legality of the subjective satisfaction of the detaining authority when it

records ""there is likelihood of detenue being released on bail"", the Court has to keep in mind the aforesaid conspectus of the Constitution. When

one's liberty is to be curtailed on the subjective satisfaction of the detaining authority with the area of interference by the Court being limited, then

within this limitation, the Court must see, in this authority's privileged area that the detaining authority does not stretch itself illegitimately in the

exercise of its jurisdiction.

In the present case, before the detaining authority there was no bail application preferred by the detenue for his release on bail in the criminal

case after his arrest on 07012003. It is, therefore, not open to the detaining authority to come to its own satisfaction based on the apprehension

that the detenue may escape on his admission of bail and indulge in similar activities. Undoubtedly, merely because no application was then pending

is no premise to hold that there was no likelihood of his being released on bail. The words ""likely to be released"" connote chances to be bailed out.

The word ""likely"" shows it can be either way. So, on the facts and circumstances of each case all the relevant material would constitute the basis

for arriving at a conclusion by the detaining authority whether or not necessary to pass an order of detention against the detenue. An order of

detention presupposes that a person has or will have freedom of action to commit the mischief, which is sought to be averted by preventive

detention. Thus, if a person is already in jail custody as an undertrial and there is no immediate prospect of his being released on bail or otherwise,

the authority cannot be legitimately satisfied on the basis of his antecedents that he is likely to indulge in similar prejudicial activities after his release

in the distant or indefinite future, as is held by the Apex Court in Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508. The order of

detention would be struck down as colourable in the absence of any explanation in the counter affidavit as to why it was deemed necessary to

make the order even while the person was already in custody. At any rate, when there is nothing in the order to show awareness of the detaining

authority that the person was already in jail, the order would be vitiated for nonapplication of his mind.

The satisfaction of the authority as to the inclination of a person to act in any prejudicial manner indicated is the sine qua non for making an order

of detention. The scheme of the section presupposes that on the date of the detention order or in the near future, the person sought to be detained

has or will have freedom of action. In the absence of clear and complete counteraffidavit by the best informed person on behalf of the State giving

sufficient explanation as to why order of detention was deemed necessary even while the petitioner was in jail custody and was being prosecuted in

a case in which he had no freedom of action, the conclusion was inescapable that the impugned order has been passed mechanically. There must

be apparent reason(s) for the detention of a person, who is already in custody. The detaining authority has nothing to show its awareness that the

detenue was in custody at the time of passing of detention order but he is required to indicate that there is likelihood of his release. Where the

order of detention was passed because the detaining authority was apprehensive that in case the detenue was released on bail he would again carry

on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail application had to be

opposed as and when filed; and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground

that the accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed, as

is held by the Apex Court in Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315.

When it is alleged that detention order has been passed without application of mind, the authority who has passed the detention order has to

rebut the allegations by filing an affidavit. The detention order even does not disclose the material based on which the detaining authority had drawn

the satisfaction for passing the detention order against the detenue. All these facts altogether, when taken in its cumulative, prove that the detention

order has been passed without application of mind and is alone sufficient to render it illegal and invalid.

It was next contended by petitioner's advocate that fixing a period of detention in initial order itself shows that the order cannot be supported.

The detaining authority at the time of passing the order fixed the period of detention of 24 months. It is significant to point out that the order of

detention has been passed by the detaining authority specifying therein ""after having been satisfied that it is necessary to prevent the petitioner from

acting in any manner prejudicial to the security and integrity of the State"". The case of the detenue was then required to be referred to the State

Advisor sic (Advisory) Board and after the report of the Board is received that the detention is justified, the Government should determine what

the period of detention should be and not before. The fixing of the period of detention in the initial order itself, as in the present case, therefore, was

contrary to the scheme of the Act and cannot be supported. After the report is received from the Advisory Board, it is for the Government to

decide under section 17 of the Act, while acting upon such report, that the period for which the detention of the detenue is to continue, after the

order of detention is confirmed. In case the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the

concerned person, the Government shall revoke the detention order and cause the person to be released forthwith. It is, therefore, clearly manifest

from the aforesaid provisions of the Public Safety Act that fixing a period of detention in the initial order would tend to prejudice a fair

consideration of the petitioner's case when placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived

of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person

affected. The detention order, therefore, on this count also deserves to be vitiated.

Article 22 (5) of the Constitution of India makes it obligatory for the detaining authority to communicate to the detenue, as soon as may be and

not later than the time fixed by the relevant statute, the grounds of detention, all the documents referred to in the grounds of detention and the

material which the detaining authority considered while formulating its subjective satisfaction, besides detention order and the police report/dossier,

if any. Failure to supply such documents and material alongwith grounds of detention would, obviously, make it difficult for the detenue to make an

effective representation against his detention and, thus, renders the detention illegal, as has been held by the Apex Court in Mst. L.M.S. Ummu

Saleema v. B.B. Gujaral and another, (1991) 3 SCO 317. The detaining authority is, in fact, obliged to mention in the grounds itself as to on which

material it based its satisfaction and the document relied upon by the detaining authority is to be supplied to the detenue even if no reference has

been made in the grounds of detention. An identical matter with regard to violation of Article 22(5) of the Constitution of India came up for

consideration before the Apex Court in Sophia Ghulam Mohammad Bham v. State of Maharashtra and others reported in AIR 1999 SC 3051.

Paragraphs 14 and 15 of the judgments may be extracted and quoted below for facility of reference:

14..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 detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person

detained in his language.

The word '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 Chander Mehta v. Commissioner and Secretary, Government of Kerala,

AIR 1986 SC 687 (1985) supp SCC144; (1985) 3 SCR 697: (1986 Cir sic (Cri) LJ 786) in which an order of detention was passed under

Sec.3(1) of the Conservation of Foreign Exchange and 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....

From the ratio of the aforesaid judgment, it is clearly evident that the materials on which the order of detention was passed in the case in hand,

i.e., dossier, copy of the FIR, recovery/seizure memo and other material referred thereto, having not been furnished to the detenue prevented him

from making an effective representation. Applying the mandate of judgment supra, the conclusion available is that there has been a violation of

clause (5) of article 22 of the Constitution of India. It has the affect of vitiating the order of detention.

In the result, this Habeas Corpus Petition succeeds and order No. PSA/57 dated 06052003 is quashed with further direction to the

respondents to release the detenue, Muskeen Ali S/o Alia Ditta, R/o Lowang Morah Mathotha, Tehsil Basohli, District Kathua, forthwith unless

required in any other case.

Registry shall take the follow up action in the matter. Record shall be returned to the learned counsel appearing for the respondents. Petition is

disposed of accordingly.