Detaining authority is under obligation to supply the material/ documents forming the basis for detention of the detenu

02/05/2022

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
LPA 30/2022
Reserved on 05.04.2022
Pronounced on 22.04.2022
Umar Nawaz Khan …….Petitioner
Through: Mr. N.A Ronga, adv.
vs
UT of J&K and anr ……Respondent(s)
Through: Mr. Sajad Ashraf, GA

MR JUSTICE ALI MOHAMMAD MAGREY
MR JUSTICE PUNEET GUPTA
Magrey-J
01. The present appeal has been preferred by the detenu, Umar Nawaz Khan, through his father, Shah Nawaz Khan, against the judgment and order dated 16.02.2022, delivered by a Single Bench of this Court in WP Crl No. 255/2021 in which the detention order No. DMS/PSA/56 of 2021 dated 18.10.2021, issued by the District Magistrate, Srinagar, was challenged. By virtue of the said detention order, the appellant/detenu was placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978. The said appellant/detenu was ordered to be lodged at Central Jail, Srinagar.
02. The detention order was executed on 21.10.2021. At that point of time, admittedly, the detenu was already facing trial in FIR No.61/2016 under sections 147, 148, 149, 341,336, 332 and 353 RPC, registered at Police Station Shaheed Gunj. Accordingly, the Police concerned prepared a dossier and while finding that the activities of the detenu are prejudicial to the maintenance of security of the State and normal law of land is not sufficient to deter the detenu from his nefarious activities, therefore the detaining authority recommended to order preventive detention of the detenu.
03. The learned Single Judge dismissed the said Habeas Corpus Petition after examining the contentions of the parties and arriving at the conclusion that none of the detenu’s constitutional and statutory rights had been violated by passing of the detention order in question.
04. The learned counsel for the appellant/detenu has raised primarily three issues before us questioning the validity of the detention.
05. The first point taken by the learned counsel for the appellant was that non-supply of relevant material/ documents vitiates the detention order. In this context, it was the case of the appellant that no documents at all were supplied to the appellant/detenu. The non-supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention and that in itself would be a ground to declare the detention order 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”.
06. The second point raised by the learned counsel for the appellant was based on non-application of mind of the detaining authority with reference to having mentioned in the order of detention and grounds of detention that the activities of the detenu are prejudicial to peace and tranquility, while as in the counter affidavit, it is mentioned that the activities of the detenu are highly prejudicial to the security of the state.
07. The third point raised by the learned counsel for the appellant was based on vagueness in grounds of detention.
08. On the other hand, Mr. Sajjad Ashraf, learned GA, defended the judgment of the learned Single Judge, as also the detention order and responded to each of the points.
09. With regard to the plea of non-supply of material/documents, Mr. Sajjad Ashraf, learned GA, placed before us the record pertaining to the detention. Ongoing through the same, we find that there is a signed document said to have been signed by the detenu, Umar Nawaz Khan alias Gori, in English. The said document is titled “Receipt of Detention Papers”. The text of the said document is set out herein below:
“…In compliance to the J&K, Kashmir/District Magistrate, Srinagar order No. DMS/PSA/56/2021 dated 18.10.2021 the grounds of detention have been served to the detenu namely Umar Nawaz Khan S/o Shahnzwaz Khan R/o Zaindar Mohalla Srinagar at the time of execution of PSA warrant today on 21.10.2021 consisting of Four leaves. The contents of the detention warrant/grounds of detention have been read over er and explained to the detenu in Kashmir/Urdu/English language which he understood fully. The detenu has also been informed that he can make the representation to the Government against his detention order, if he so, desire..”
10. Based upon the said receipt, Mr. Sajjad, learned GA submits that the grounds of detention had been supplied along with other relevant documents and, therefore, the appellant cannot make any grievance on this ground.
11. With regard to the non-application of mind, detaining authority having mentioned the reason for detaining the detenu as prejudicial to the security of the State and in the grounds of detention to disrupt 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. Sajjad, learned GA submits that the grounds are clear and without any ambiguity.
12. Mr. Sajjad, learned GA, submits that insufficiency of supply of material shall not form a ground for vitiating the detention of the appellant/detenu. He further submits that the detenu was required to file representation on the material whatever supplied and could have projected the grounds of non-supply of the material before the detaining authority, which he has failed, therefore, non-supply of material vitiates the detention, has no substance. He further averred that there is no non-application of mind or vagueness in grounds. He has referred to and relied upon the Judgment(s) reported as (1986) I Supreme Court Cases 404 titled Shiv Ratan Makim vs. Union of Inida and AIR 2001 Supreme Court 301 titled R. Keshava vs. M. B. Prakash and Ors.
13. We have heard learned counsel for the parties, perused the records and considered the matter.
14. Coming to the first point, which pertains to the non-supply of relevant material in order that the detenu could make an effective representation against his detention. According to Mr. Sajjad, learned GA, 4 (four) leaves of documents including grounds of detention had been served upon the detenu. On examination of the record submitted before us, we find that 10 (ten ) leaves available in the records are:
(i) copy of detention order = 01 leaf,
(ii) grounds of detention= 02 leaves
(iii) execution of PSA warrant= one leaf
(iv) revocation of earlier detention order dated 12.04.2020= one leaf,
(v) extension order= one leaf
(vi) dossier = four leaves, total ten leaves,
though the receipt mentioned four leaves only.
15. This in itself would vitiate the detention order as the detenu 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 No. 61/2016, site plan, arrest memo, statements under Section 161 Cr.PC. Record reveals that the documents which formed the basis for detaining authority to detain the detenu are ten leaves but only four leaves have been provided to the detenu. Therefore, full material has not been supplied to the detenu, 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.
16. We may refer to Judgment of 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 detenu 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.”
17. 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 cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).
18. 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 detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu 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.
19. We have also considered the submissions of Mr. Sajjad Ashraf, learned GA, in so far as non-supply of complete material is concerned. As per the constitutional and statutory mandate, the detaining authority is under obligation to supply the material/documents forming the basis for detention of the detenu. The judgments referred to and relied upon by Mr. Sajjad Ashraf, learned GA, are not relevant being not connected with the issues raised by the appellant, therefore, distinguishable.
20. For all these reasons, the impugned judgment dated 16.02.2022 passed by the learned Single Judge in WP Crl No. 255/2021 is set-aside and the detention order No. DMS/PSA/56 of 2021 dated 18.10.2021is quashed. The appellant/detenu namely Umar Nawaz Khan alias Gori s/o Shahnawaz Khan r/o Zaindar Mohalla, Srinagar, is directed to be released forthwith, if he is not, otherwise in custody in connection with some other case(s).
21. Records be returned to learned Govt Advocate.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
Srinagar
22.04.2022
Ayaz

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