Suhaib Shafi Baba vs UT Of J&K And Others

Sindhu Sharma, J

The detention Order no. DMS/PSA/06/2021 dated 21.01.2022 passed by the District Magistrate, Srinagar, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 has been assailed in this petition by the detenue-Suhaib Shafi Baba S/o Mohammad Shafi Baba R/o Diwat Walipora, Rainawari, Srinagar through his father Mohammad Shafi Baba.

The detenue has challenged the order of detention on the grounds that (i) the material forming basis of the grounds of detention has not been supplied to him, thus, infringing upon his right to make an effective representation; (ii) the detenue was already in custody in connection with FIR no. 28/2018 under Sections 302,307 IPC, 7/27 Arms Act, 13, 16, 18 and 39 of Unlawful Activities (Prevention) Act and the detaining authority has not shown any awareness to this fact and, as such, the detention order is liable to be quashed.

In their counter affidavit the respondents have disputed the contentions of the detenue. It is submitted that the detenue was detained by the District Magistrate, Srinagar in accordance with the provisions of Public Safety Act. The detaining authority has followed all the procedural safeguards while detaining the detenue. The order of detention was passed by the detaining authority after arriving at its subjective satisfaction and after considering all the material. The grounds of detention and all the material relied upon by the detaining authority was furnished to the detenue and the detaining authority had complied with all the statutory and Constitutional safeguards as provided under the law.

Heard learned counsel for the parties and perused the record.

The specific contention raised by the detenue is that the detenue was in police custody at the time of passing of the aforesaid order of detention in connection with the FIR no. 28/2018 under Sections 302,307 IPC, 7/27 Arms Act, 13, 16, 18 and 39 of Unlawful Activities (Prevention) Act registered against him, as such, there was no compelling reason in the grounds of detention to pass the impugned order. It is apparent from the record that the detenue at the time of passing of the impugned order, was in custody. This aspect has not been reflected in the grounds of detention, and the detaining authority has not shown any awareness to this effect. Reliance is placed on AIR 2000 SC 3675, Amrit Lal v. Union Government through Secretary and ors in which the Hon’ble Supreme Court has held as under:-

“4. In Agustin’s decision (supra) this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad (MANU/SC/0164/1986: 1986 Cri LJ 1959 wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the Officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention.”

It is well settled that the person who is involved in criminal case can be detained under the provisions of preventive law provided there are compelling circumstances for doing so, otherwise, the order would be vitiated. Since the detenue was already in custody at the time of passing of the detention order, yet no such cogent reasons have been given by the respondents while passing the order of detention.

Perusal of record reveals that the petitioner has not been supplied all the material relied upon by the Detaining Authority, while arriving at its subjective satisfaction and passing the order of detention. The execution report reflects that the petitioner has only been supplied copies of grounds of detention, notice of detention and letter addressed to the detenue (eight leaves), but all the other relevant material like dossier, FIR, statement of witnesses etc. relied upon by the detaining authority have not been furnished to him. The detenu has, thus, prevented from making effective representation under Article 22 of the Constitution of India. The Detaining Authority has recorded its satisfaction with regard to sufficiency of grounds of detention only on the basis of dossier placed before it by the Senior Superintendent of Police, Srinagar and the record produced contains the dossier, but this has not been supplied to the detenu and, thus, has vitiated the order of detention.

Reliance has been placed on the judgment rendered in ‘Sophia Ghulam Mohd. Bham Vs. State of Maharashtra and others’, (1999) 6 SCC 593, relevant are Paras 12, 13 and 14, wherein, the Hon’ble Apex Court observed as under:-

“12. The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.

Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under :

"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. 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 grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carry the same philosophy that there should not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. 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 detenu 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 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.”

This has resulted in infraction of Constitutional and statutory safeguards guaranteed to him under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act for making an effective and purposeful representation.

In view of the aforesaid discussion, there is no need to advert to other grounds raised in this petition.

Keeping in view the aforesaid facts and circumstances, the law as laid down by the Apex Court and also the fact that the respondents have not adhered to legal and Constitutional safeguards, this petition is allowed and the detention order No. /DMS/PSA/06/2021 dated 21.01.2022 passed by the District Magistrate, Srinagar, under which the detenue-Suhaib Shafi Baba S/o Mohammad Shafi Baba is under detention is quashed. The respondents are directed to release the detenue from the custody forthwith, provided he is not arrested or detained in any other case.

Detention record be returned to learned counsel for the respondents by the Registry.