1) By the instant petition, petitioner seeks quashment of the order of detention bearing No.49/DMA/PSA/DET/2018 dated 22.09.2018 passed by
District Magistrate, Anantnag. In terms of said order, Muzamil Ahmad Dar (hereinafter referred to as the detenue), has been taken into preventive
custody by invoking powers under Section 8 of the J&K Public Safety Act.
2) The detention order has been challenged, mainly, on the grounds that the detaining authority has failed to apply its mind to the fact whether the
preventive detention of the detenue was imperative notwithstanding the fact that he was implicated in case FIR No.131/2018 registered at Police
Station, Bijbehara under Section ¾ Explosive Substance Act. To this, it has been added that the respondent No.2 has passed the order of detention
on the dictates of the sponsoring agency i.e. the officer who has prepared the police dossier and no attempt has been made by respondent No.2 to
scan and evaluate it before passing the order of detention.
Further, it is added that the respondents have violated the procedural safeguards available to the detenue under the Constitution, thus, rendering the
impugned order illegal and liable to be set aside.
3) Respondents have filed counter affidavit wherein they justified the passing of impugned detention order. Learned Sr. AAG has made available the
detention records to lend support to the submissions made in the counter affidavit.
4) Heard learned counsel for the parties and also perused the records.
5) The main plank of argument of the learned counsel for the petitioner is that the since the detenue was in custody of the police in connection with
case FIR No.131/2018 P/S Anantnag, therefore, there was no need to direct his preventive detention. The arrest of the detenue in the said criminal
cases at the time of passing of the orders of detention has not been disputed.
6) Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration
whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically “Noâ€, taking into
consideration the law laid down by the Hon’ble Apex Court in “Sama Aruna v. State of Telangana & Anr†(AIR 2017 SC 2662). Para 24 of
the said judgment is apposite to be quoted herein below:
“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His
custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in
the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In
Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:
“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the
detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area.
If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order
in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of
detention under the National Security Act should not ordinarily be passed.â€
7) The same view has been repeated and reiterated by the Hon’ble Supreme Court in the judgment delivered in the case of “V. Shantha v.
State of Telangana & Others†(AIR 2017 SC 2625). Para 13 of the said judgment is relevant to be quoted as under:
“The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and
their safety and financial well-being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent
the detenue from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order and that there was
no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds. The
rhetorical incantation of the words “goonda†or “prejudicial to maintenance of public order†cannot be sufficient justification to invoke the
draconian powers of preventive detention. To classify the detenue as a “goonda†affecting public order because of inadequately yield from the
chilli seed sol by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of
detention are ex-facie extraneous to the Act.â€
8) Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the
provisions of the Public Safety Act when he was already in the custody of the police authorities in the cases, the details whereof have been given in
the grounds of detention. His custody in police for the offences referred in the grounds of detention, has been converted into the custody under the
impugned detention order. May be the detaining authority might have been laboring under the belief that the detenue applies for bail, he may succeed
in seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application.
Notice of fact cannot be lost that the offence punishable under Section ¾ Exp. S. Act carries punishment of death or life imprisonment and so
possibility of grant of bail was almost bleak. Even in the event of his release on bail, the State could have exercised its right to knock at the doors of
higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when
he is already in custody and has not applied for bail. It cuts the very root of the state act. The State could have taken recourse to the ordinary law of
the land.
9) Learned counsel for the petitioner further contended that in the grounds of detention, it is nowhere mentioned as to whether detenue in connection
with criminal case registered against him was released on bail or as to whether he had applied for bail. The Detaining Authority too has not given any
cogent reason so as to derive satisfaction or to record compelling reasons for passing the order of detention.
10) The contention raised, on perusal of the grounds of detention as well as the detention record, is found to be correct, so non-application of mind is
explicit which renders the order of detention illegal. In my view I am fortified by the judgment rendered in the case captioned “Anant Sakharam
Raut Vs. State of Maharashtra and others†reported in AIR 1987 SC 137. Para 8 of the judgment is apt to be quoted:
“We hold that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when
the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and
direct that the petitioner be released forthwith.
11) The Hon’ble Apex Court in para 27 of the judgment Rekha Vs. State of Tamil Nadu and anrâ€, (2011) 5 SCC 244 has held as under:-
“27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which
is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence
the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing
had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even
though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be
given, otherwise the bald statement of the authority cannot be believedâ€.
5. It shall also be quite apposite to quote Para 5, 6 and 7 of the judgment of the Hon’ble Apex Court in “Surya Prakash Sharma v. State of U.
P. and others, 1994 SCC (Cri) 1691:
“5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in
custody has had been engaging the attention of this court since it state first came up for consideration before a Constitution Bench in Rameshwar
Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat
v. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in
the following words:
“The decisions referred to above lead to the conclusion that an order for detection can be validly passed against a person in custody and for that
purpose it is necessary that the grounds of detention must show that (i) the detailing authority was aware of the fact that the detenue is already in
detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression
compelling reasons in the context of making an order for detention of a person already in 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)
taking into account the nature of the antecedent activities of the detenue, 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.â€
6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be
sustained. Though the grounds of detention indicate the detaining authority’s awareness of the fact that the detenu was in judicial custody at the
time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support
of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail “he may again indulge in serious
offences causing threat to public orderâ€. (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might
indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.
7.On the conclusions as above we quash the order of detention.â€
12) Learned counsel for the petitioner next contended that the material forming base of the grounds of detention and consequent order of detention
has not been supplied to the detenue whereby he has been deprived from exercising his right guaranteed under Article 22(5) of the Constitution of
making an effective representation against his detention, which renders the detention order bad.
13) In opposition learned counsel for the respondents would contend that the material/documents, based on which detaining authority has derived
subjective satisfaction for passing the order of detention, have been supplied to the detenue and besides this, the narrations of acts of the detenue has
also been given in the grounds of detention, therefore, detenue, in any way has not been prejudiced or disabled from making a representation.
However, the detention record as produced failed the learned counsel for the respondents to justify his argument regarding supply of material to the
detenue as no receipt in token of acceptance of material has been placed on record.
14) The Hon’ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham v. State of Maharashtra & ors†(AIR 1999
SC 3051), has held 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 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 to the detenue 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.â€
15) In paras 27 and 28 of the judgment captioned “Thahira Haris etc. etc. Vs. Government of Karnataka & Ors, reported in AIR 2009 Supreme
Court 2184, Hon’ble Apex Court 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.
28. 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.
16) It is also 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 othersâ€, (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.â€
17) Learned counsel for the petitioner also added that the detenue has 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.
18) The submission appears to have force as the respondents have not brought anything 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 reproduced 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.â€
19) 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 grounds, therefore, other grounds projected in the petition are not required to be dealt with.
20) Having regard to the above discussion, the impugned order of detention order of detention bearing No.49/DMA/PSA/DET/2018 dated 22.09.2018
being unsustainable, is, as such, quashed. Further custody of the detenue shall be regulated in terms of the orders as shall be passed by the court of
competent jurisdiction in connection with the criminal case registered against him.
21) Registry to return the detention records to the learned counsel for the respondents.
