Serial No.129 Regular List HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No.270/2018 Date of decision:18.12.2018 [ENTITY] Vs. State of J&K and ors. Coram: Hon'ble Mr Justice [ENTITY], Judge Appearance: For the Petitioner(s): Mr. [ENTITY], Adv. For the Respondent(s): Mr. [ENTITY], GA.
i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No 1) By virtue of order bearing No.DMB/PSA/12/2018 dated 30.08.2018,
passed by respondent No.2-[ENTITY], in exercise of powers under [SECTION] of the [ACT], [ENTITY] son [ENTITY] resident of Banagund Chadoora, Budgam, has been taken into preventive custody and lodged in District Jail, Kathua, Jammu. Veracity of the said order is assailed in the instant petition on the grounds detailed out therein.
2) The petitioner's case, as set out in the petition, is that the detenue, on 25.08.2018, was booked in connection with case FIR No.60/2017 registered by Police Station, Chadoora under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] RPC and there after impugned detention order was slapped upon him. The allegations/grounds of detention are stated to be vague and mere assertions.
The detenue had applied for bail which was granted by the Court of Judicial Magistrate, 1st Class, Chadoora but the said fact has not been made mention of in the grounds of detention. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his [ACT]al and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents has made available detention records to lend support to the case set up in the counter affidavit.
4) Heard learned counsel for the parties and also perused the record.
5) Firstly, learned counsel for the petitioner contended that the detenue had been admitted to bail in FIR No.60/2018 which fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under [ACT], detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "[PRECEDENT]
"We hold that there was clear non-application of mind on the part of 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 judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith "
6) Next, it is further projected that when the detenue was already in custody, there was no need to direct his preventive detention. It has been stated in the counter affidavit that the detenue is involved in FIR No.60/2018 registered in Police Station, Chadoora and his arrest in the said FIR, at the time of passing of the order of detention, has not been disputed.
7) The object of passing the order of detention is to deter a person from acting in any manner prejudicial to the security of the State or public order. When the movement of the person is already under curtailment i.e. is in custody in connection with a criminal case, then there can be no requirement of preventive detention, unless, of course, circumstances exist for passing order of detention. Preventive laws have the effect of depriving a person of liberty which is precious, deprivation thereof at times may be unavoidable, for justifying such deprivation, safeguards as are provided by law are required to be respected. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the [ACT]al safeguards as are available are also to be respected.
8) It is settled position of law that a person in involved in a criminal case can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following Para from the judgment "[PRECEDENT]:
" 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 detenue was likely to be released on bail"
9) 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 "No", taking into consideration the law laid down by the Hon'ble Apex Court in "[PRECEDENT]. 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 [CASE NUMBER]. 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 [PRECEDENT], 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 [ACT] should not ordinarily be passed."
10) It shall be apposite to quote Para 5 of the judgment of the Hon'ble Apex Court in "[PRECEDENT], has held as under:
"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 [ACT] Bench in [ENTITY] vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat v. Union of [ENTITY]a wherein a three judge Bench after considering all the earlier relevant decisions including [ENTITY] 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."
11) Learned counsel for the petitioner next contended that the detaining authority has not applied its mind while passing the impugned order as the grounds of detention is the ditto copy of the dossier which would show that the detaining authority has not applied its mind. When the grounds of detention is a copy of the dossier, that is enough for quashing the order of detention.
12) The ground projected, on perusal of the detention records, appears to have substance. On careful perusal of the dossier and the grounds of detention, what would emerge is that only word in each para has been changed i.e. in the dossier every para starts with "the subject" whereas in the grounds of detention every para starts with "you are residing" or "you have turned" likewise. Rest of the words are the ditto of the dossier. The formulation of grounds of detention on the basis of the material is a pre- condition for deriving satisfaction so as to order detention of a person. It appears that detaining authority has not adhered to the same and it appears that the concept of deriving satisfaction, in the instant case, has become a causality. In the judgment "[ENTITY] through his [PRECEDENT], wherein, while noticing the same position and while relying on the judgment captioned "[PRECEDENT], it was held that there was no due application of mind by the detaining authority in passing the order of detention.
13) Next learned counsel for the petitioner contended that the detenue has been disabled from making an effective representation against the detention as the material, which formed base of the grounds of detention and consequent order of detention, has not been furnished to the detenue.
14) Perusal of the detention records reveals that the submission has weight. Detention records shows that only copy of detention warrant and copy of grounds of detention (06 leaves) have been provided to the detenue while executing the detention warrant. Furnishing the copy of grounds of detention would not absolve the detaining authority from furnishing the material forming base of the grounds of detention as it is the material which would enable the detenue to make an effective representation against the detention. Non-supply of the material would amount to violation of [SECTION] of the [ACT] of [ENTITY]a, so deprivation of a valuable right.
15) The Hon'ble Apex Court in the judgment rendered in the case of "[PRECEDENT], has held as under:
"The right to be communicated the grounds of detention flows from [SECTION] 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."
16) In paras 27 and 28 of the judgment captioned [PRECEDENT], 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 [ACT] provides adequate safeguards under [SECTION] 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.
17) It is also quite apposite to quote para 10 of the judgment of the Hon'ble Apex Court in "[PRECEDENT]:
"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 [SECTION] of the [ACT]. Relying upon this legal position counsel for the petitioner urged before us that in the instant case a breach of the mandate contained in [SECTION] read with [SECTION] of the [ACT] 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, [PRECEDENT] and [PRECEDENT] 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."
18) Next it is contended by the learned counsel for the petitioner 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 being illiterate.
19) The records, as produced by the learned counsel for the respondents, do not suggest that the translated copies of grounds of detention have been supplied to the detenue, therefore, infringement of right guaranteed under [SECTION] of the [ACT]. The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same. In my view I am fortified by the judgment rendered by the Hon'ble Apex Court in the case "[PRECEDENT]. Following portion from para 9 of the judgment shall be quite apposite to be quoted:
" The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with."
20) Para 13 of the judgment in [PRECEDENT]'s case (supra) shall also 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 [ENTITY], her sister [ENTITY] and one [ENTITY], 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 [SECTION] is clearly violated."
21) Following portion from para 9 of the judgment rendered by the Hon'ble Apex Court in the case "[PRECEDENT] shall be quite apposite to be quoted:
" The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenue to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with."
22) It shall also be quite apposite to quote following portions from paras 3 and 5 of the judgment rendered by the Hon'ble Apex Court in the case captioned "Smt. Raziya Umar Bakshi Vs. Union of [ENTITY]a" (AIR 1980 SC 1751):
"3 The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie."
5 in case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language he understands."
23) In "[PRECEDENT], Hon'ble Supreme Court has observed as under:
" The amplitude of the safeguard embodied in [SECTION] extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order."
24) The detention record produced by the learned counsel for the respondents carries a copy of Execution Report dated 05.09.2018 perusal of which shows that the grounds of detention have been read over to the detenue by one SI [ENTITY] but no affidavit in support thereof has been filed which was required to be sworn by the said officer. Looking at the said ground from yet another angle, what can be said is that to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of "[PRECEDENT], wherein it has been held as under:
"Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of [SECTION] of the [ACT], (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement [CASE NUMBER] 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of [SECTION] of the Act."
25) Para 5 of the judgment rendered in the case of "[PRECEDENT] shall be advantageous to be quoted here-under:-
"5. Thus the stand taken by the detaining authority is that ASI [ENTITY] explained the grounds of detention to the detenue in Urdu and Kashmiri. However, affidavit of said ASI has not been filed. I have perused the record made available by Learned Counsel for the respondents. In the record there is a photocopy of C/Certificate of said ASI to that effect when the Learned Counsel was asked to produce the original, he expressed his inability to do so. The un-authenticated photocopy does not deserve to be noticed. Therefore, neither there is affidavit of said ASI nor any reliable document available on record to substantiate the fact that ASI [ENTITY] had actually explained the grounds of detention to the detenue in his own language. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon'ble Supreme Court in the above quoted authority. The detention order thus cannot be sustained being violative of mandate of law on the aforesaid ground alone."
26) Para 20 of judgment rendered in the case of "Lallubhai Jogibhai Patel vs Union Of [ENTITY]a & Ors" reported in 1981 AIR 728 is advantageous to be quoted:
"20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri [ENTITY], Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of [SECTION] of the [ACT], which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in [SECTION] is infringed. If any authority is needed on this point, which is so obvious from [SECTION], reference may be made to the decisions of this Court in [PRECEDENT]: and [PRECEDENT] (ibid)."
27) Preventive laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable. For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance of public order has to be dealt with iron hand but the [ACT]al safeguards as are available are also to be followed. The [SECTION] of the constitution of [ENTITY]a has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word established is used in [SECTION] in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in strict conformity with law authorizing detention, the detenue is entitled to be released.
28) Preventive detention, in effect, is an invasion to personal liberty which infringe the right to liberty guaranteed by [SECTION] of the [ACT] of [ENTITY]a. Preventive detention, in view of exception to [SECTION], has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. The Hon'ble Supreme Court in catena of judgments has made it clear as to what is the value of the 'constitutional safeguard' and as to what is the value of right to liberty guaranteed under [SECTION] of the [ACT] of [ENTITY]a. In this connection, it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned "[ENTITY] Vs. State of Tamil Nadu and anr", reported in (2011) 5 SCC 244:
"37. As observed in [PRECEDENT] "5 The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard."
As observed by Mr. Justice [ENTITY] of the United States Supreme Court in [PRECEDENT] " It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law".
38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience".
29) Keeping in view the hallmark of the cherished right to liberty in keeping with the object of [SECTION] of the [ACT] of [ENTITY]a, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing.
30) The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing [CASE NUMBER] dated 30.08.2018, passed by respondent No.2-[ENTITY] is not valid, as such, quashed. Further custody of the detenue shall be governed by the orders as shall be passed by the Court of competent jurisdiction relatable to the criminal case registered against him.
31) The record, as produced, be returned to the learned counsel for the respondents.
([ENTITY]) Judge [ENTITY] 18.12.2018 "[ENTITY], PS"