Rameez Ahmad Mir vs State Of Jammu & Kashmir & Ors

1) Pursuant to order No.26/DMP/PSA/18 dated 04.09.2018, issued by respondent No.2-District Magistrate, Pulwama, in exercise of powers conferred by clause (a) of Section 8 of the J&K Public Safety Act, 1978, Rameez Ahmad Mir (hereinafter for short referred to as the detenue) has been taken into preventive custody. By the instant petition, validity of the said order is challenged on the grounds detailed out therein.

2) Learned counsel for the petitioner highlighted various grounds while seeking quashment of the order impugned but the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base of the grounds of detention and the consequent order of detention.

3) The submission appears to have force as the respondents have not brought anything on record to suggest that the material forming basis for detention has been supplied to the detenue, therefore, infringement of right guaranteed under Article 22(5) of the Constitution.

4) The Hon'ble Apex Court in the judgment rendered in the case of "Sophia Gulam Mohd. Bham v. State of Maharashtra & ors" (AIR 1999 SC 3051), has held as under:

"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 detenue 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 detenue 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."

5) In paras 27 and 28 of the judgment captioned "Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 2184, Hon'ble Apex Court has held as under:

"27. 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 document, 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 materials 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.

6) It is quite apposite to quote para 10 of the judgment of the Hon'ble Apex Court in "Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others", (1982) 3 SCC 440:

"10. Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily and in the 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. Relying upon this legal position counsel for the petitioner urged before us that in the instant case a breach of the mandate contained in Article 22 (5) read with Section 3 (3) of the COFEPOSA is clearly involved because of three things that have happened, namely, (i) supply of Urdu translations of the bulk of documents and statements incorporated in the grounds and relied upon by the detaining authority was delayed beyond the normal period of 5 days without any exceptional circumstances obtaining in the matter, (ii) the alleged exceptional circumstances purporting to justify the delay and the fact that the reasons had been recorded in writing were not communicated to the detenu which has prevented him from making effective representation against his continued detention and (iii) Urdu translations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have not been supplied to him at all. As regards the first two aspects counsel relied upon two decisions of the Patna High Court, namely, Bishwa Mohan Kumar Sinha v. State of Bihar and Ors.(1) and Bishwanath Prasad Keshari v. State of Bihar & Ors.(2) where the Patna High Court has taken the view that not merely should the exceptional circumstances exist justifying the delayed supply of the grounds of detention but these should be communicated to the detenu to enable him to make an effective representation. Counsel urged that because of the aforesaid failure the continued detention of the petitioner must be held to be illegal. We find considerable force in these submissions made by the counsel for the petitioner."

7) In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on aforesaid ground alone, therefore, other grounds projected in the petition are not required to be dealt with.

8) For the afore-stated reasons and the law laid down by the Hon'ble Apex Court, the impugned detention order bearing No.26/DMP/PSA/18 dated 04.09.2018, is unsustainable, as such, quashed. The detenue is directed to be released from the preventive custody provided he is not required in connection with any other case/cases.

9) Detention record be returned to the learned counsel for the respondents.