If relevant material is not supplied to the detenu, the right of the detenu to file a representation is impinged upon and the detention order is vitiated: High court of J&K and Ladakh

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Case no.No. 21 2021 Reserved on 21.10.2021 Pronounced on 03.11.21 …Petitioner Mr. Aftab Ahmad adv. Mehraj ud din Ganaie Govt of J&K and ors Through : Mr. B.A Dar Sr. AAG Hon’ble Mr. Justice Ali Mohammad Magrey. JUDGMENT Detenu Mehraj ud din Ganaie son of Abdul Rehman Ganaie R o Tengpora Batmaloo Bye Pass District Srinagar through his wife Naziya seeks quashment of detention order no. DMS PSA 15 2021 dated 22.02.2021 purporting to have been passed by District Magistrate Srinagar with consequent prayer for release of the detenu forthwith. The petitioner detenu has challenged the order of detention on the following grounds: “a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention moreso in view of the fact that as on the date of passing of the aforesaid order of detention the detenu was already in custody b) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order c) that the impugned order has been passed without proper application of mind. d) that the detention order was not provided to the detenu within the statutory period”. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents perused the writ records as also the detention record produced by the learned counsel for the respondents. 5. Learned counsel for detenu has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was already in custody therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority therefore the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point both of the Supreme Court and of various High Courts including our own High Court are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v. State of Gujarat 3 SCC 440 the Apex Court relying on its earlier judgments in Khudiram Das v State of W. B. 2 SCR 81 Icchu Devi Choraria v. Union of India 4 SCC 531 in paragraph 10 of the judgment has held 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: 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 alongwith 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”. In Khudiramcase 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). In Smt. Icchu Devi Case 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. So far as the ground taken i.e non communication of the grounds of detention is concerned perusal of file reveals that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him as there is no material to that effect on record. This according to the 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 under: “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 laid down by the Apex Court in aforesaid cases vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 11. Examining the present case on the touch stone of the above settled position of law and perusal of record the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material documents as referred to in the order of detention. On these counts alone the detention of the detenu is vitiated the detenu having been prevented from making an effective and purposeful representation against the order of costs. 12. Accordingly the detention order No. DMS PSA 15 2021 dated 22.02.2021 is quashed and the detenu Mehraj ud din Ganaie son of Abdul Rehman Ganaie R o Tengpora Batmaloo Bye Pass District Srinagar is directed to be released from preventive custody forthwith. No order as to 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Registry to return the detention record to Mr. B.A Dar Sr. AAG. Ali Mohammad Magrey) Judge Disposed of. Srinagar Syed Ayaz Hussain Whether order is speaking: Yes No. Whether order is reportable: Yes No. 

Summary: The only right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority as held by the Hon’ble high Court of J&amp;K through a learned bench of Justice Ali Mohammad Magrey in the case of Mehraj ud din Ganaie Vs Govt of J&amp;K and ors [(WP Cri) No. 21/2021]  Learned counsel for detenu submitted that the grounds taken in the detention order and the material referred to and relied upon had no relevance because the detenu was already in custody, therefore, there was no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It was submitted that in absence of material the detention order was passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner in order to strengthen his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The court after a perusal of the facts on record and hearing the counsel opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. While referring to on such judgment of the Supreme Court in 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, the hon’ble HIGH Court stated that “In Khudiramcase, 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). In Smt. Icchu Devi Case , 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.”