Rafiq Ahmad Magloo vs State of J & K

By medium of this petition, for a writ of habeas corpus, the detention of the detenue named Rafiq Ahmad Magloo under the orders of the

respondents u/s 8 of the J&K Public Safety Act, hereinafter referred to as Act, has been challenged, inter alia, on the following grounds:

1) That the detenue was arrested at his house along with his father and brothers on 19.4.1990, without any lawful authority. His father and brothers

were released after 45 days from the illegal detention. The detenue was not released and nor the order of detention served upon him. However,

the grounds of detention were served upon him in the first week of February 1991. In the grounds of detention he was not informed that he has a

right to make a representation against his detention. No authority informed him about it in the Jail either.

2) That the detenue was never produced before the Advisory Board, which is mandatory under law.

3) That the grounds of detention are completely vague and bereft of all the material particulars thereby depriving him of his right to make an

effective representation against his detention.

4) That no document or weapon was recovered from his possession as alleged in the grounds of detention.

5) That the detenue has not been furnished with relevant documents and other necessary material which was considered by the detaining authority

for assuming its subjective satisfaction that his activities were 'prejudicial to the security of the state and for preventing him to do so, he was

required to be detained. In absence' of such material he could not make an effective representation against his detention.

6) That in absence of the order of detention which was not furnished to him, be could not say by whom the said order was passed and therefore

allegedly the grounds of detention were furnished to him beyond the stipulated period as provided under the Act.

7) That the detaining authority has not shown its awareness about his arrest in a substantive offence or of the fact that he had moved an application

for bail in the Designated court, which smacks of nonapplication of mind.

This petition was admitted to hearing as far back as on 24.5.1991 and the respondents directed to file the counter within four weeks time.

No counter was filed in terms of the said order. On 307.1991, Mr. Mansotra, Govt. Advocate appeared for the respondent's and sought time to

file the counter. He was given further time, of four weeks in this behalf, however, he failed to file any counter in this case. He was directed at least,

to produce the detention record but he failed to do so either. Mr. Mansotra, frankly admitted in the court that the respondents have not given him

any record for the reasons best know to them therefore he, failed to file the counter either.

The result of nonfiling of the counter and nonproduction of the record would be that the allegations made in the petition on an affidavit, having

remained unrebutted, are to be deemed as correct.

I have heard the learned counsel for the parties at length and gone through the file.

Now I will discuss the merits of the case, keeping in view the allegations made in the petition, which have not been rebutted or counteracted in any

manner whatsoever.

1) Allegedly the order of detention was not given to the detenue and therefore, he could not know as to when it was made, for how much period

and with what documents if any. In absence of the order of detention he never knew that he had a right to make a representation against that order.

In the grounds of detention also be was not informed of his right to make a representation. No authority informed him about it either. In absence of

the counter and the detention record, the court bas no alternative but to presume that allegations made above are correct. These allegations have

been made in the petition on an affidavit.

Under law the detaining authority was obliged to furnish the order of detention to the detenue, not only for his detention but also to inform him that

he was detained under the provisions of the Act on a particular date for a specific period, giving the details of documents annexed thereto and the

information that he could make a representation against the order. After all, these details are to be contained in the order of detention. Besides, it is

from the order of detention that the detenue comes to know as to who amongst the prescribed authorities has passed such order and whether it is

competent to do so or not.

In Absence of all this how could the detenue know all these details behind the four walls of the Jail. He could not know as to who has passed the

said order, when and for which period. He could not know as to which documents, if any, were sent to him by the detaining authorities besides the

grounds of detention.

For this reasons the detenue has been deprived of his legal right as regards making of representation against his detention etc. Under Art. 22(5) of

the Constitution of India, it is the legal right of the detenue to make a representation against his detention. Making of such a representation

presupposes information to the detenue that such a right is available to him under law. If he is not informed of this right at all by the detaining

authority, how could he make representation against his detention, more so, when such authority is ally bound to give him such information.

Moreover, when the order of detention is not furnished to the detenue he is deprived of his knowledge of the date of his detention, the duration of

such detention and also as to what documents have been sent to him by the detaining authority for making an effective representation.

As already stated above, no counter having been filed by the respondents, the court has no alternative but to hold that the petitioner has suffered all

these disabilities depriving him of his right to make an effective representation.

For this reason alone the order of detention deserves to be quashed.

2) Allegedly the detenue was never produced before the Advisory Board though the respondents were under law bound to do so. This allegation

too has been made on an affidavit by the petitioner and has not been controverter by the respondents in any manner whatsoever. It is beaten law

that the detenue is to be produced before the Advisory Board unless he declines to do so. The nonproduction of the detenue before the Advisory

Board has also deprived him of a legal right conferred upon him by the Act, to explain his case before the said Board. The deprivation of this right

also makes the order of detention invalid.

3) Allegedly the grounds of detention are vague and looking in all material particulars thereby deprived him of his right to make an effective

representation.

In order to appreciate this allegation, I have gone through the grounds of detention. In para 2 of the grounds of detention the parentage of Sajad

Madini has not been given. In absence of such parentage how could the detenue know the identity of that person. Similarly in para 3 of the grounds

of detention, the parentage and the residence of the persons mentioned therein has not been given, it does not also spell out the name of the Gojer

guide in whose house the detenue had taken the dinner. In such circumstances how could he make an effective representation. In para No. 4, of

the grounds of detention also the names and parentage of the 14 youths have not been given, thus depriving him of his right to make an effective

representation. Similarly, in the 5th grounds of detention also the full particulars of the person mentioned therein have not been given.

In these circumstances of the case the court has no alternative but to hold that the grounds are vague bereft of all material particulars and,

therefore, the detenue has been deprived' of his constitutional right to make an effective representation against his detention.

In the grounds of detention it has been alleged that the detenue collected two documents from ""Sajad Madini"" in which registered Nos. of Shiv

Sena vehicles were written. This allegation also is bereft of all material, particulars. The details of the said documents have not been given and nor

the Nos, of the said vehicles. In absence of such important particulars how could the detenue make an effective representation against his

detention.

Allegedly, the detenue has not been furnished with any material, which has been considered by the detaining authority for assuming its subjective

satisfaction that the activities of the detenue were prejudicial to the security of the state and it was necessary to detain him, so as to prevent him

from doing so. In absence of such maturity how could the detenue make an effective representation against his detention. Under law the detaining

authority is obliged of furnish all the material including the documents, to the detenue, if any referred to in the grounds of detention and relied upon

by him, for assuming its subjective satisfaction. After all for assuming subjective sati faction some material is placed before the detaining authority. It

is on the basis of that material that the detaining authority is convinced that the detention of the detenue is necessary to prevent him from indulging in

prejudicial activities. If such material is not furnished to the detenue, he will not be in a position to make an effective representation.

This allegation has been made by the petitioner on an affidavit, which has not been controverter by the respondents in any manner whatsoever.

They have not filed any counter to rebut this allegation and nor produced the detention record, in this behalf. The court, therefore, is convinced that

the necessary material and the relevant documents were not furnished to the detenue to enable him to make an effective representation against his

detention. Nonsupply of such material has deprived him of his right to make a representation, which is volatile of Art. 22(5) of the constitution of

India making the order invalid.

This has already been discussed above while appreciating the first ground taken by the petitioner in his petition challenging the detention of the

detenue.

Allegedly, the detaining authority has not shown its awareness about the arrest of the detenue in a substantive offence of the fact that he had

moved any application for bail in the 'Designated court'. From the perusal of the grounds of detention it is manifest that the detaining authority has

only stated that the detenue was arrested from his house on 19th of April 90. It is not stated as to under what law or offence he was so arrested

and what legal action was taken against him. Even the No. Of the FIR, if any registered against the detenue on his arrest has not been mentioned.

The detaining authority was obliged to show its awareness about the arrest of the detenue in a case where he was likely to be admitted to bail. If

the detenue was arrested in some offence where he could not be admitted to bail, then the question of detaining him in preventive detention could

not arise. After all the detention under the Act is required for preventing a detenue in future from indulging in some prejudicial activities. If he is

already under detention in an offence where there is no scope of bail, the necessary type of detaining him to preventive detention is not required.

Under law the detaining authority is required to show this awareness before detaining a person under the provisions of the Act. Nothing of the sort

has been done in the present case.

Moreover, from the perusal of the file, it appears that the detenue had moved an application for bail in the Designated court at Jammu in FIR No:

3/90. The said application was rejected by the ""Designated court"" on 15th of November 1990. A Xerox copy of the order of the Designated court

rejected the application is on the file. In view of the rejection of the bail application of the detenue by the 'Designated court' there was no necessity

for the detaining authority to take the detenue into preventive detention. It' be was already in custody and there was no possibility of his release on

bail, where was the necessity of detaining him under the provisions of the Publi Safety Act. This shows the nonapplication of mind on the part of

the detaining authority.

Moreover, as has been held above, the order of detention was not furnished to the detenue. It is not known to the court as to who has passed the

said order. The grounds of detention however, have been signed by Add'. Chief Secy (Home). It is not staled in the grounds of detention as to

who has assumed this subjective satisfaction for detaining the detenue. The grounds of detention have not been shown to have been formulated by

the Government/Governor. It appearstherefore, that the said grounds of detention have been approved by the Addl. Chief Secretary (Home) who

has no power under the Act to do so. In the grounds of detention it was to be shown necessarily as to which authority has considered them for

detaining of the detenue. It is therefore, presumed that it is Additional Chief Secretary (Home), who has passed the order of detention and

formulated the grounds of detention. He is not competent under law to pass any order under section 8 of the Act. In that view of the matter the

order of detention has been passed by an incompetent authority having no jurisdiction to pass such order. The grounds of detention also have been

formulated by the same authority without any jurisdiction.

In these circumstances of the case, I allow this petition and hold the detention of the detenue as unconstitutional, illegal and bad in Jaw. The

detention order under which he has been detained is hereby quashed and the detenue ordered to be set at liberty forthwith. The respondents as

also the superintend jot Jail concerned are directed to implement, this order at once.

The petitioner is also held entitled to costs assessed at Rs.1000/.

Let the file be consigned to records after due completion.