When Detaining Authority has failed to explain the grounds to detenu in the language which he understands, it constitutes an infraction of a valuable constitutional right: High Court of J&K and Ladakh

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR 178 2020 Reserved on: 27.09.21 Pronounced on: 11.10.2021 Through: Syed Musaib adv. Through: Ms. Asifa Padroo AAG Tawheed Ahmad Lone State of J&K and Anr. HON’BLE MR JUSTICE ALI MOHAMMAD MAGREY JUDGE JUDGMENT Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 81 DMB PSA 2019 dated 31.12.2019 purporting to have been passed by District Magistrate Baramulla whereunder detenu namely Tawheed Ahmad Lone s o Mohammad Hamzah lone R o Chatipora Rafiabad Baramulla District Baramulla is under detention. It is submitted that the detenu is never involved in any illegal activity. The allegations levelled against the detenu in the grounds of detention are vehemently denied to be correct as the same are baseless. Therefore the detention order deserves to be quashed. Briefly stated the case of the petitioner is that the detenu was arrested in the month of July 2019 by Police component Rafiabad and implicated in a case FIR 114 2019 u s 18 39 ULAAct 7 25 A. Act. Police station Dangiwacha. However whether the detenu filed the bail in the said FIR before the competent court of Jurisdiction not mentioned by the competent authority while passing the detention The challenge to the impugned order is inter alia made on the grounds that the allegations against the detenu have no nexus with the detenu and have been fabricated by the police to justify the illegal action of detaining him in preventive custody the grounds of detention are vague non existent and the impugned order being based on such vague non existent grounds deserves to be quashed the detenu is innocent and has not committed any offence of whatsoever nature the detaining authority has not applied its mind while issuing the impugned order the detenu was already arrested and was in police custody in connection with a case the aforesaid FIR the detenu being in the police custody is uncalled for the satisfaction recorded by the detaining authority is vis à vis the alleged activities of the detenu being prejudicial to the security of the state the material in the shape of dossier has not been furnished to the detenu nor has he been furnished the copy of FIR statements allegedly recorded under section 161 164 A of the Code of Criminal Procedure seizure memo recovery memo as mentioned in the grounds of detention so that the detenue could have made an effective representation against his detention to the Competent Authority In his counter affidavit respondent no.2 has stated that the detenu’s activities being prejudicial to the security of the State his detention was necessary to prevent him from indulging in such acts which was also approved by the Government and the State Advisory Board constituted u s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. But despite the directions detention record not produced. Heard learned counsel for the parties perused the writ record and considered the matter. Photo copy of detention record also produced. The contention raised by learned counsel for the petitioner detenu with reference to the detaining authority having not mentioning in the order about whether petitioner detenu has made any bail application this fact has not mentioned either in the grounds of detention or in the impugned order. Learned counsel for the Petitioner has vehemently contended that the detenu was in police custody and there was no chance of his being released on bail. In this regard my attention has been drawn to the averments contained in grounds of the writ petition wherein it was speciﬁcally urged that the detenu was already in custody and he had neither applied for bail not bail was otherwise granted to him. It is contended that in these circumstances there was no warrant for passing the order of preventive detention. Learned counsel in support of his submissions has referred to and relied upon the Division Bench judgment of this court reported as 2020 2) JKJ[HC] 102 2019 JKLT 288: The relevant paras extracted are as 14. .has placed reliance on the pronouncement of the Supreme Court reported at AIR 2000 SC 3675 Amrit Lal Ors. Vs. Union of India & Ors. wherein the Supreme Court had held that there must be cogent material before the oﬃcer passing the detention order that the detenu who stands arrested is likely to be released on bail. It was categorically held by the Supreme Court that such conclusion 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 was held that likelihood of detenu s moving an application for bail is not a cogent material . In para 6 the Supreme Court has observed that likelihood of his moving an application for bail which is diﬀerent from likelihood to be released on bail . This reasoning in our view is not suﬃcient compliance with the requirements as laid down. Thus merely the possibility of the detenu moving the bail application in a case in which he was in custody but had not obtained the bail order has been held to be insuﬃcient reason for passing of an order of detention under preventive detention laws. 15. In the pronouncement of the Supreme Court reported at 2011SCC 244 Rekha vs. State of Tamil Nadu a detention order came to be passed when the detenu was already in custody. So far as the legality of the detention order was concerned it was argued by counsel for the appellant that the impugned detention order was passed on 8th April 2010 and that the bail application of the detenu was also dismissed on the same date. The submission was that it could not be said that no bail application was pending when the detention order was passed. The observations of the Court in Paras 25 26 27 and 30 relevant for our consideration read as follows: 25. In this connection it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 08.04.2010. On the other hand in para 4 of the grounds of detention it is mentioned that "Thiru Ramakrishnan is in remand in Crime No. 132 2010 and he has not moved any bail application so far". Thus the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence the detention order in question cannot be sustained”. 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 detaining authority can reasonably conclude that there islikelihood 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 believed. 26. So far as the contours of this requirement and suﬃcient compliance thereof is concerned learned counsel for the appellant has placed a pronouncement of the Supreme Court reported at AIR 1999 SC 3051 Sophia Gulam Mohd. Bham vs. State of Maharashtra before us wherein the importance of this requirement stands considered. Para 12 13 and 14 of the same reads as 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 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 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 5 14. 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." Emphasis supplied) Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about the his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act 1978 which renders the detention order as invalid and deserves to be quashed. 10. The aforesaid view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India 2 SCC 427” the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu but the Apex Court held that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as “Communicate’ is a strong word which 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 ‘grounds’ 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 Article 22(5) is infringed.” In view of the law mentioned hereinbefore vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the The petition is accordingly allowed and detention order no. 81 DMB PSA 2019 dated 31.12.2019 purporting to have been passed by District Magistrate Baramulla under which the detenu namely Tawheed Ahmad Lone s o Mohammad Hamzah Lone R o Chatipora Rafiabad Baramulla District Baramulla is under detention quashed with direction for his release forthwith. The petition stands accordingly disposed of. 14. No order as to costs. 15. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Judge Disposed of. Srinagar S.A Hussain Secretary i)Whether the order is speaking: ii)Whether the order is reportable : Yes No 

Summary: Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act, 1978, which renders the detention order as invalid and deserves to be quashed as held by the Hon’ble High Court in the case of Tawheed Ahmad Lone Vs State of J&amp;K and Anr. [WP (Crl) 178/2020]. Briefly stated the case of the petitioner is that the detenu was arrested in the month of July 2019 by Police component and implicated in a case FIR 114/2019 u/s 18, 39 ULA (P) Act 7/25 A. Act. Police station Dangiwacha. However, whether the detenu filed the bail in the said FIR before the competent court of Jurisdiction is not mentioned by the competent authority while passing the detention order. The challenge to the impugned order was made on the grounds that, the allegations against the detenu have no nexus with the detenu and have been fabricated by the police to justify the illegal action of detaining him in preventive custody; the grounds of detention are vague, non-existent and the impugned order, being based on such vague, non-existent grounds, deserves to be quashed; the detenu is innocent and has not committed any offence of whatsoever nature. In his counter affidavit, respondent no.2 had stated that the detenu’s activities being prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit had contended that in circumstances of the case the impugned detention is well founded in fact and law. But despite the directions, detention record not produced. The Hon’ble court after hearing the both sides observed that the contention raised by learned counsel for the petitioner-detenu with reference to the detaining authority having not mentioning in the order about whether petitioner-detenu has made any bail application, this fact has not mentioned either in the grounds of detention or in the impugned order. Learned counsel for the Petitioner has vehemently contended that the detenu was in police custody and there was no chance of his being released on bail. In conclusion, the Hon’ble High Court, while relying on the Judgment of LallubhaiJogibhai Patel v. Union of India, stated that “Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about the his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act, 1978, which renders the detention order as invalid and deserves to be quashed.”