Sumair Altaf @APPELLANT@Hash State Of Jammu & Kashmir And Anr

1) Petitioner, by the medium of instant petition, seeks quashment of detention order No.52/DMP/PSA/18 dated 8.10.2018, issued by District Magistrate, Pulwama, in exercise of powers conferred by Clause (a) of Section 8 of the J&K Public Safety Act. In terms of the said order,Sumair Altaf @ Shafat S/o Mohd. Altaf Dar R/o Arigam A/P Batapora laldhoo Khrew Tehsil Pampore District Pulwama (hereinafter referred to as the detenue) has been directed to be taken into preventive custody so as to prevent him from indulging in the activities which are prejudicial to the security of the State.

2) Perusal of the order impugned reveals that the detenue has been ordered to be detained with a view to prevent him from acting in any manner prejudicial to the security of the state.

3) Learned counsel for the petitioner highlighted various grounds while seeking quashment of the impugned order but the star ground is that detenue was arrested in connection with case FIR No.73/18 U/S 7/25 Arms Act and Section 5 of Explosive Substance Act registered at P/S Khrew, and had not applied for bail and when it was so, how could he be taken into preventive custody. The detaining authority has not given the compelling reasons for detaining the detenue under preventive laws. It is also submitted that the detaining authority respondent-2 has not furnished the copy of communication No. Conf/PSA/2018/98-201 dated 05.01.2018 which has been relied on to arrive subjective satisfaction alongwith other documents referred in the grounds of detention. Learned counsel for the petitioner has placed a reliance on the judgment of this court in Ghulam Nabi Shah Vs. State of J&K & Ors. reported in 2005 (I) SLJ 253.

4) Learned AAG has contended while making reference of the counter affidavit that the pleas raised on behalf of the detenue are unfounded. It is already submitted, as further canvassed, in terms of the counter affidavit that the provisions of the Public Safety Act have been followed and the detenue has been detained only after following due procedure prescribed in terms of Public Safety Act. The grounds of detention were explained to the detenue in the language which he understood fully according to him . There has been proper application of mind for detaining the detenue. The detenue has been provided all the material which was considered by the detaining authority while passing the impugned order. These are additional points referred by learned AAG.

5) Heard, and considered.

6) Detention record has not been produced.

7) It is trite that preventive orders can be passed even when a person is in police custody or involved in a criminal case but for so doing, compelling reasons are to be recorded. No such reason has been recorded. When it is so, order of detention becomes unsustainable. In the judgment referred above by learned counsel for the petitioner the observations applicable to the instant case are:

"The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to deter the detenue from such subversive activities. Similar proposition of law was also in HCP NO. 97/2000 titled Bilal Ahmed Bhat vs. State and Ors. wherein while dealing with it satisfaction and the reasons disclosed by the detaining authority directing preventive detention of the detenue is that the ordinary law of the land is not sufficient to deter the detenue from his activities. This cannot be accepted either as a ground of detention. While dealing with a similar proposition on facts and law, the Supreme Court in "Surya Prakash Sharma vs. State of U.P reported in 1994 SCC (Cr.) 1691 in para 5 has held that:-

"The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody has had been engaging the attention of this court since it first came for consideration before a constitution Bench in "Rameshwar Shaw Vs. District Magistrate, Burdan." To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat vs. Union of India wherein three Judge, Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words:

The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that

(i) the detaining authority was aware of the fact that the detenue was already in detention and

(ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that;

(a) the detenue is likely to be released from custody in the near future and

(b) that it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

The detaining authority has to disclose the compelling reasons if the reasons are not disclosed the impugned order suffers for non-application of mind. Grounds of detention indicate the awareness of the detaining authority that the detenu was in custody of the respondents at the time of directing his preventive detention. The detaining authority has not brought on record any cogent material that ordinary law of land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority can not, therefore, be said to be proper and justified..."

The case of the detenue is fully covered by the judgment (supra). Respondents have not shown any material to make out that the ordinary law is not enough to prevent the detenu despite the fact that the detenue was already taken into custody for alleged commission of offence under Section 13 of Unlawful Activities Act. The subjective satisfaction arrived at, under such circumstances cannot be said to be proper and justified. The detention order, therefore, deserved to be quashed."

The law laid down by the above referred authority squarely applies to the facts of the present case. In the present case too the detaining authority has not given any compelling reason for the preventive detention of the detenue when he was already booked under the ordinary criminal law.

In T.P. Moideen Koya v. Govt. of Kerala 2004 (8) 106 the Apex Court held:

" that in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenu was likely to be released on bail."

Learned counsel for the petitioner next contended that the material which formed base of the grounds of detention and consequent order of detention has not been furnished to the detenue, besides translated copies of the grounds of detention have not been furnished to him which disabled him from making an effective and purposeful representation against his detention.

The submission appears to have forceful as nothing has been brought on record to show that the material forming base of the detention has been furnished to the detenue.In particular reference of communication dated 05.01.2018 made in the detention order by the learned counsel does not appear to have been furnished. The counter as referred hereinabove the detaining authority has not quoted the details of documents furnished. Record has not been produced from which inference can be made as to what had been supplied to the detenue for enabling him to make a presentation. Non-supply of the material would amount to violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right. The Hon'ble Apex

Court in its judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme Court 2184, 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.

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."

Learned counsel for the petitioner also submitted that that the detenue has also been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand.

Nothing has been brought on record to show that the translated copies of the grounds of detention have been supplied to the detenue which has prejudiced the detenue in the exercise of his right to make an effective representation against his detention. For this, Para 13 of the judgment in Ibrahim Ahmad Batti's case (supra) shall be quite apposite to be reproduce herein:

"Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly not supplied to the detenu at all and the only explanation given by the counsel for the respondents at the hearing has been that most of these documents (Urdu translations whereof were not supplied) comprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record (statements of Rekha, her sister Indi and one Jayantilal Soni, all co-conspirators of the detenu, recorded during the investigation) clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also converse or talk in Hindi and Gujarati and as such the non- supply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot condone the non-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would not justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of counsel on either side we have ourselves gone through many of these documents and statements and it is not possible to say that most of them are merely statements of account containing figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in contraband articles like gold, silver, watches, etc., and comprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language not understood by detenu, and, therefore, the non-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard contained in Article 22(5) is clearly violated."

It shall be quite advantageous to quote following para from the judgment rendered in case captioned Powanammal vs. State of T. N. and another reported in 1999 (2) SCC 413:

"The amplitude of the safeguard embodied in Article 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 detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order."

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 the above referred ground alone, therefore, other grounds projected in the petition are not required to be dealt with.

In view of these facts I find that on this ground also the order of detention is not sustainable. The result is that this petition is allowed and the order of detention No. 52/DMP/PSA/18 dated 8.10.2018 is hereby quashed. The detenue Sumair Altaf @Shafat S/o Mohammad Altaf Dar R/o Arigam A/p Batapora Ladhoo Khrew Pampore District Pulwama be released forthwith in the present case(s) provided he is not required in any other case. .