Sajid Ali vs State of J&K and Ors.

Petitioner, Sajid All alias Sajid son of All Mohd. Malik resident of Mahore, was detained in preventive custody under section 8 of the Public

Safety Act, 1978 (hereinafter for short referred to as ""the Act"") by District Magistrate, Jammu, vide his order No.02/PSA of 2004 dated

14/01/2004, in order to prevent the detenue from acting in any manner prejudicial to the security of the State. The detention of the petitioner was

confirmed by the Government for a period of 24 months under section 17(1) of the Act, vide its order No.HOME/PBV/560 of 2004 dated

11032004. The order of detention has been challenged by the petitioner on variety of grounds and are detailed hereunder.

To begin with, it is submitted that the detaining authority has not disclosed in the order as to what was the material provided to him, which

formed the basis of its satisfaction for passing the order of detention against the petitioner and, thus, the order being without application of mind, is

rendered invalid. That the detaining authority has not supplied all the material referred to and relied upon in the grounds of detention and thereby

the petitioner is prejudiced to make an effective representation against the order of detention to the Government/Competent Authority. It was next

contended by the petitioner that the grounds of detention have neither been supplied to him in the language understood by the petitioner nor its

translated script so as to enable the petitioner to make representation against the detention order, which clearly means the nonobservance of the

mandatory provisions of section 18 of the Act. Even the mandate of Article 22(5) of the Constitution of India has been followed more in breach

than compliance, as in the absence of the translated script of the grounds of detention in the language understood by the petitioner deprived him to

make a meaningful representation against his detention.

Respondents in their counter repudiated the contention of the petitioner and submitted that the details of the antinational and subversive activities,

in which the detenue has been indulging given in the grounds of detention, were considered to be highly prejudicial to the security of the State,

based on which the detention of the detenue in preventive custody was found necessary. The grounds of detention were duly served upon the

detenue before the execution of the detention order and read over and explained to him in the language fully understood by him, as is indicated in

the execution report. The case of the detenue was referred to the State Advisory Board and after securing its opinion, the detention order was

confirmed on 11032004, though on account of typographically mistake specified as 132003. It is also stated that at the time of passing of

detention order, the detenue was under custody for the commission of offences specified in the grounds of detention, but in the event of being

admitted to bail, likelihood of the detenue to again indulge in such activities could not be ruled out and in order to prevent him from such activities,

the detention order was passed. It is contended, in the premises that there has been no violation of the procedural safeguards in the order of

detention passed by the detaining authority against the detenue, as such, the same is legally valid.

I have heard the learned counsel appearing for the respective parties and also perused the record produced by the respondents pertaining to the

detention of the detenue, meticulously.

The grounds of detention formulated by the District Magistrate, Jammu, disclose that the detenue was motivated by one Bashir Ahmed Malik,

his real uncle to work for Hizbul Muzahidin outfit. The detenue was arrested alongwith his sister, Nahida Tabasum, in case FIR No.204/2003

under sections 10/12, Criminal Law Amendments Act, 1983 and section 13 of the Prevention of Unlawful Activities Act, by Police Station, Pacca

Danga on 19112003. The detenue is stated to have been getting money from Master Bashir and his cousin Aizaz to execute the work assigned to

him before he was shifted to Jammu in the year 2002. He was also introduced to one Khalid, who later on also frequented his house and arranged

money for Hizbul Muzahidin from Delhi through Hawala and handed over to his father and in November, 2002, the detenue was assigned a job of

receiving money from one Khalid at Bus Stand, Jammu and handing over to Master Bashir, which was meant to be carried to Mahore for

distribution among the militants. The detenue collected Rs. six lacs from Khalid at Bus Stand, Jammu. Again in the month of January, 2003, he

received Rs. five lacs for distribution in Mahore area. The detenue went on receiving the money from the militants from time to time for onwards

distribution to the militants. Again on instructions of Master Bashir, he accompanied by his sister Nahida Tabasum received an amount of Rs. ten

lacs wrapped in a white polythene bag at Bus Stand, as usually. He, however, lodged a report with the Police that he has been robbed of Rs. three

lacs by two unknown persons, which led to the registration of a case and investigation disclosed that this false report was lodged in order to

conceal the facts of his involvement in the antinational activities in Hawala transaction to carry out and escalate the militancy in the State of Jammu

and Kashmir. Police Station Pacca Danga registered an FIR No.204/2003 and recovered an amount of Rs. one lac from the Dicky of the scooter.

The grounds of detention further disclose that detenue was presently in judicial lockup in District Jail, Jammu and in case of his release on bail, he

will again indulge in similar activities highly prejudicial to the security of State.

The detention order, though not available on the writ file, was found/available on detention file, which reads as under:

OFFICE OF THE DISTRICT MAGISTRATE, JAMMU

ORDER NO. O2/PSA of 2OO4

DATED : 14/01/2004

Whereas, I, Dr. Pawan Kotwal IAS, District Magistrate, Jammua am satisfied that with a view to prevent Sajid Ali @ Sajid, S/o Ali Mohd Malik,

R/o Mallan, Tehsil Mahore, District Udhampur, A/p H.No.308 Sidhra, Jammu from acting in any manner prejudicial to the security of State and it

is necessary to do so.

Now, therefore, in exercise of powers conferred by section 8 of J&K PSA, 1978,1, Dr. Pawan Kotwal IAS, District Magistrate, Jammu hereby

direct that the said Sajid Ali @ Sajid, S/o Ali Mohd Malik, R/o Mallan, Tehsil Mahore, District Udhampur, A/p H.No.308 Sidhra, Jammu be

detained in District Jail Jammu for a period of two years.

Sd/

(Dr. Pawan Kotwal) IAS,

District Magistrate, Jammu.

Forwarded in duplicate to the Sr. Supdt. of Police Jammu for execution of detention order as provided by Section 9 of the J&KPSA 1978.

Notice of the order shall be given to Sajid Ali @ Sajid, S/o Ali Mohd Malik, R/o Mallan, Tehsil Mahore, District Udhampur, A/p H.No.308

Sidhra, Jammu by reading over and explaining to him in the language he understand s.

Sdl

(Dr. Pawan Kotwal) IAS,

District Magistrate,

Jammu.

The aforesaid order of detention in its plain reading does not indicate the basis of its satisfaction of the detaining authority for passing the

detention order with a view to prevent the detenue Sajid Ali from activities in any manner prejudicial to the security of the State. The question

arises as to whether the statutory condition precedent, viz., the requisite subjective satisfaction was really formed with due care and caution before

making the order of detention.

A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant

and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not with hold any

material from detaining authority. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention

order vitiates if any relevant document or material is not placed before the detaining authority which reasonably could affect its decision. It is clearly

gatherable from record that the detenue was released on bail in FIR No.204/2003 by the Additional Sessions Judge, Jammu vide his order dated

312003. The order of detention against the detenue was passed by the detaining authority on 14012004 and served upon him on 15012004.

Neither the dossier nor the grounds of detention disclose that the detenue has already been released on bail in FIR No.204/2003, which formed

one of the grounds of detention indicated therein and drawn from the dossier supplied by the sponsoring authority. It clearly shows that the

detaining authority was unaware about the release of the petitioner on bail prior to the passing of the detention order. There is an obligation cast on

the sponsoring authority to place every material fact before the detaining authority, which has not been done in this case. There should be

consideration of all relevant materials in case such materials were within the reach of the detaining authority till a formal detention order was issued.

The question is not whether this vital fact was relevant or not but whether it was placed before the detaining authority for its consideration. It

contains the very stand of the detemie of whatever worth. This is relevant. It may be that the detaining authority might have come to the same

conclusion as the sponsoring authority but this material fact, viz., already release of the petitioner on bail and no report about his indulgence in the

similar activities during this period and till the passing of the detention order is relevant, which could not be withheld by the sponsoring authority,

Even at the time of filing the counter, the detaining authority was not aware of the detenue having been released on bail in the said FIR.

Nonplacement and nonconsideration of this relevant and material fact before the detaining authority, in my view, is sufficient to vitiate the detention.

No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining

authority came to the conclusion that it was necessary to detain the petitioner. But the question was whether the detaining authority applied its mind

to relevant considerations. If it did not, the detenue is to be entitled to be released, as is held by the Apex Court in Sita Ram Somani v. State of

Rajasthan, AIR 1986 SC 1072. Further, when a material fact having a bearing on the issue, is weighed with the satisfaction of the detaining

authority, one way or the other, influences its mind, is either withheld or suppressed by the sponsoring authority or ignored and not considered by

the detaining authority in issuing the detention order, the same shall get vitiated.

It was next contended by Mr. Rehman that the material relied upon in the grounds of detention has neither been supplied to the detenue nor its

translated script in the language understand able to the detenue furnished to him, which amounted to clear violation of the constitutional safeguards

embodied in Article 22(5) of the Constitution of India. His further submission is that the grounds of detention referred to the dossier provided by

the sponsoring authority in case FIR No.204/2003 registered against the detenue under sections 10/12 Criminal Law Amendments Act, 1983,

section 13, preventions of Unlawful Activities Act. Neither the copy of the FIR nor the dossier has been supplied to him alongwith grounds of

detention. Even the grounds of detention were never read over and explained to the detenue in the language understood by him at the time the

detention order was served upon and he was, thus, deprived of his valuable right of making an effective and meaningful representation against the

order of detention to the Government/Competent Authority. The receipt bearing the signatures of the detenue found on the record of the detention

file clearly shows that in law the grounds of detention were supplied to the detenue and were read over and explained to him in Urdu language. It

does not indicate any other material, viz., copy of the dossier and FIR relied upon at the time of passing the detention order, also to have been

furnished to the detenue. The detention file does not reveal that the detenue was supplied with the translated copies of the materials and documents

relied upon by the detaining authority for drawing up its satisfaction at the time of passing the detention order. In Sophia Gulam Mohd. Bham v.

State of Maharashtra and others, AIR 1999 SC 3051, the Apex Court observed 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 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...

In Naseer Ahmad Sheikh v. Additional Chief Secretary Home and another, SLJ1999 J&K241, a Division Bench of this Court observed:

...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the

detaining authority by the concerned SSP. No where is it pleaded, muchless shown, that the copy/copies of these reports of the police on which

the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenu so as to enable him to make an

effective representation against the orders.

Again in Powanammal v. State of Tamil Nadu, (1999) 2 SCC 413, the Apex Court held as under:

The amplitude of the safeguard embodied in Art.22 (5) extends not merely to oral explanation of the grounds of detention and the material in

support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understand able to the

detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a

representation against the order.

Therefore, the nonsupply of the Urdu version of the English document, on the facts and circumstances, renders the continued detention as

illegal. The language admittedly known and understand able to the detenue was Urdu and whereas grounds of detention were supplied to him in

English language in clear breach of the procedural safeguards guaranteed under Article 22 (5) of the Constitution of India. It may further be pointed

out that 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 material fact in passing the

detention of the detenue so as to enable him to make an effective representation against the order. In this case, the detention order manifestly

appears to have been passed in a casual manner by the detaining authority without referring to the basis on which he acquired the satisfaction that

the detention of the petitioner was necessary with a view to prevent him from indulging in activities prejudicial to the security of the State. The

detaining authority was unaware of the detenue being already on bail when the order of detention was passed and seems to have derived the

satisfaction from the material that the detenue was still in custody and in the event of his being released on bail, there was every likelihood of his

indulging in similar activities, which amounts to nonapplication of mind and, thus, vitiates the order of detention.

In the above view of the matter, the detention order, in my view, cannot be sustained and is vitiated. The impugned detention order is,

accordingly, quashed and the respondents having the physical corpus of the detenue, Sajid Ali son of Ali Mohd Malik, R/o Malian Tehsil Mahore,

District Udhampur, are directed to release and set him at liberty forthwith provided the detenue is not required in any case. Copy of the order be

provided to the petitioner free of cost and the follow up action to be taken by the Registry.

Record shall be returned to the learned counsel appearing for the respondents. Petition is disposed of accordingly.