Sajjad Hussain Mir vs State Of Jammu And Kashmir And Others

The present writ petition has been filed by the detenue, Sajjad Hussain Mir S/o late Shri Noor Hussain Mir R/o Village Thachna Tehsil Dachhan,

District Kishtwar, in which the detention order bearing No.103/PSA of 2018 dated 14.11.2018 issued by respondent No.2 i.e., District Magistrate,

Kishtwar is challenged. By virtue of this detention order, the petitioner was placed under preventive detention in exercised with the powers exercised

under Section 8 of the J&K Public Safety Act, 1978 and the said petitioner was ordered to be lodged at District Jail, Kathua.

The aforesaid detention order was executed on 16.11.2018. At that point of time, admittedly, the said detenue was also in custody in connection

with substantive offences.

Learned counsel for the petitioner has raised primarily four issues questioning the validity of the detention order. The first issue raised by learned

counsel for the petitioner is that the detention order along with grounds of detention was never served by the detaining authority on the petitioner, as

such the same is admitted in the order, wherein respondent No.2-District Magistrate, Kishtwar in terms of communication dated 14.11.2018 has asked

the Senior Superintendent of Police, Kishtwar to serve the detention order along with copy of grounds taken in the detention order.

The second point raised by learned counsel for the petitioner is that non supply of relevant material/documents which hits the detention order. In this

context, it was the case of the petitioner that no document was supplied to the petitioner. The non supply of relevant documents seriously undermines

the capacity of a detenue to make an effective representation against the detention and that in itself would be a ground to declare the detention void.

This right flows from the Constitution of India. In support, he referred to the decision of the Supreme Court in the case of Ibrahim Ahmad Batti V.

State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier Judgments in Khudiram Das v. State of W. B., (1975) 2 SCR 81; Icchu Devi

Choraria v. Union of India, (1980) 4 SCC 531.

The third point raised by learned counsel for the petitioner was based on non application of mind of the detaining authority with reference to having

mentioning in the order of detention and grounds of detention that the activities of the detenue are prejudicial to the security of the State, while as in

the counter affidavit, it is mentioned that the activities of the detenue are prejudicial to the public order. In support, he has referred to a decision of the

Supreme Court in the case titled Huidrom Konungjao Singh Vs. State of Manipur and Ors., reported as MANU/SC/0458/2012:(2012) 7 Supreme

Court Cases 181.

The fourth point raised by the learned counsel for the petitioner was based on vagueness in grounds of detention. In support, he referred to the

decision of the Supreme Court in case, titled Mohd Yousuf Vs. State of J&K, reported as AIR 1979 Supreme Court 1925.

On the other hand, Mr. Vishal Bharti, learned Deputy Advocate General defended the detention order and he responded to each of the points. With

regard to the first issue he submitted that the detention order along with grounds of detention was served by the detaining authority to the petitioner

and there is a mention in the grounds of detention about the execution and detention of the petitioner. Therefore, according to him, the detaining

authority was aware of the fact that the detenue was already in custody when the detention order was passed. He, therefore, submitted that the point

raised by the learned counsel for the petitioner on this score was untenable.

With regard to the plea of non-supply of material/ documents, Mr. Vishal Bharti, learned Deputy Advocate General, placed before the Court the

record pertaining to the detention. On going through the same, I find that there is a signed document said to have been signed by the detenue, Sajjad

Hussain Mir, in English. The said document is titled “Execution Report on 16.11.2018â€​. The text of the said document is set out herein below:

“Execution Report as on 16.11.2018

In compliance to District Magistrate Kishtwar Order No. 103/PSA of 2018 dated 14.11.2018, Insp. Mohd. Bashir PID No. EXJ-006649 DPL

Kishtwar took the custody of PSA detenue namely Sajjad Hussain Mir @ Rizwsan S/o Late. Noor Hussain Mir R/o Village Thachna Dachhan Tehsil

Dachhan District Kishtwar on 15.11.2018 for execution of PSA warrant at District Jail Kathua. The contents of detention warrant and grounds of

detention (06) leaves have been read over to the above said detenue in English and explained in Urdu & Kashmiri languages which he fully understood

and accordingly copy of detention warrant and copy of grounds of detention (06) leaves have been provided to him for making representation and in

lieu of which his signature has been obtained at mark “Aâ€​ below.

The said detenue along-with relevant documents i.e. copy of detention order, and copy of grounds of detention (06) leaves have been handed over to

the jail authorities of District Jail Kathua on 16.11.2018 against proper receipt for further lodgment and further handing over to the said detenue under

proper receipt U/R. The said detenue has also been informed that he can make representation to the Government against the order of detention if he

so desire.

Signature attested

Handed over by:- Executed by:-

Sd/- Sd/-

Insp. Mohd. Bashir Insp. Mohd. Bashir PID

PID No. EXJ-006649 DPL No. EXJ-006649 DPL

Kishtwar. Kishtwar.

Taken over by:-

Sd/

Dy. Superintendent

District Jail Kathua.â€​

Based upon the aforesaid execution report, Mr. Vishal Bharti, learned Deputy Advocate General submits that the grounds of detention had been

supplied along with other relevant documents and, therefore, the petitioner cannot make any grievance on this ground.

With regard to the non-application of mind, detaining authority having mentioned the reason for detaining the detenue as security of the State and

in the grounds of detention as public order. It is submitted that there is no non-application of mind, as the relevant is only reasons recorded in grounds

of detention. With regard to plea of vagueness of the grounds is concerned, Mr. Vishal Bharti, learned Deputy Advocate General submits that the

grounds are clear and without any ambiguity.

I have heard learned counsel for the parties, perused the records and considered the matter.

Coming to the second point, which pertains to the non-supply of relevant material in order that the detenue could make an effective representation

against his detention. According to Mr. Vishal Bharti, learned Deputy Advocate General, six leaves of documents including grounds of detention had

been served upon the detenue. On examination of the record, I find that near about 30 (thirty) leaves are comprised of detention order, grounds of

detention, other connected material which has not been supplied to the detenue.

This in itself would vitiate the detention order as the detenue would have been incapacitated from making an effective representation, when he

was not supplied the material, mention whereof is made in the detention order, viz copy of FIR Nos. 05/2010, 09/2010, 10/2010, 12/2010, 13/2010,

14/2010, 17/2010, 22/2010, 23/2010, site plan, arrest memo, statements under Section 161 Cr.PC. Even if it is assumed that six leaves of documents

were supplied to the detenue, including the copy of FIRs, dossier and statement under Section 161 Cr.PC, but the record reveals that the connected

documents, which formed the basis for detaining authority to detain the detenue are near about thirty leaves. Therefore, full material has not been

supplied to the detenue, as such, there has been non-compliance on the part of the detaining authority resulting in the detention order becoming invalid

inasmuch as it is in violation of the constitutional and statutory mandate.

I may refer to Judgment of Hon‟ble Apex Court in case Ibrahim Ahmad Batti V. State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on

its earlier Judgments in Khudiram Das v. State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531. Para 10 of the

Judgment being relevant is extracted as under:-

“Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all

documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in

arriving at the requisite subjective satisfaction must be furnished to the detenue along with the grounds or in any event not later than 5 days ordinarily

and in 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.â€​

In Khudiram case (supra), the Apex Court has explained what is meant by „grounds on which the order is made‟ in context of the duties case

upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

In Smt. Icchu Deve Case (Supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied

upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of

detention by reference and the right of the detenue to be supplied copies of such documents, statements and other materials flows directly as a

necessary corollary from the right conferred on the detenue to be afforded the earliest opportunity of making a representation against the detention,

because unless the former right is available the latter cannot be meaningfully exercised.

For all these reasons, instant Habeas Corpus petition bearing No.53/2018 is allowed and the impugned detention order bearing No.103/PSA of

2018 dated 14.11.2018 issued by respondent No.2 i.e., District Magistrate, Kishtwar is quashed. The respondents are directed to release the detenue

forthwith if he is not otherwise in custody in connection with some other case(s). Record produced by Mr. Vishal Bharti, learned Deputy Advocate

General be returned to him.

Disposed of on the above terms.