Communicating the ground to the detenu enables him to make effective representations. : Jammu & Kashmir High Court

Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 Jammu & Kashmir High Court Srinagar Bench Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 1 Sr 501 AN HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR No. 458 2020 Reserved on 03.06.2021 Pronounced on 14.06.21 Tanveer Ahmad Seergojri ...Petitioner Through: Mr. Hilal Ahmad Wani adv vs Union Territory of J&K and ors ....respondents Through : Mr. Mir Suhail AAG Coram: Hon ble Mr. Justice Ali Mohammad Magrey JUDGMENT 1. Detenu Tanveer Ahmad Sheergojri son ofGulzar AhamdSheergojriresident of CheckporaNewa Tehsil Pulwama District Pulwama through hisfather seeks quashment of detention order no 39 DMP PSA 19 dated 07.08.2019 purporting to have been passed by District Magistrate Pulwama with consequent prayer for release of the detenu forthwith 2. 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 3. 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 Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 dismissal of the Heabus Corpus Petition 4. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents perused the writ records 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 becausethe detenu was already in custody therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public at large. 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 6. 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 detenualongwith 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 andall 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 7. In Khudiramcasethe 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 8. In Smt. Icchu Devi Casethe Supreme Court has taken the view that documents statements and other materials referred to or relied upon in the grounds of detention by the Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 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 9. 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 10. 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 detention 12. Accordingly the detention order No.39 DMP PSA 19 dated 07.08.2019 is quashed and the detenu Tanveer Ahmad Sheergojri son of Gulzar Ahamd Sheergojri resident of Checkpora Newa District Pulwama is directed to be released from preventive custody forthwith. No order as to costs Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance by the mode available Ali Mohammad Magrey) Judge Srinagar 14.06.2021 Syed Ayaz Hussain Secretary i) Whether order is speaking: Yes No ii) Whether order is reportable: Yes No Judgment pronouncement by me today the 14th June 2021 in terms of Rule 138(3) of J&K High Court Rules 1999 Sanjeev Kumar) Judge MOHAMMAD YASIN DAR 2021.06.14 13:40 I attest to the accuracy and integrity of this document Indian Kanoon 

Summary: The phrase ‘communicate’ is a strong one, implying that a sufficient understanding of the fundamental facts underlying the ‘grounds’ should be conveyed to the detainee in writing in a language he understands. The entire point of presenting the ‘grounds’ to the detainee is to allow him to make a useful and effective representation. If the ‘grounds’ are only verbally given to the detainee and no written documentation in a language he knows is left with him, the goal is not served, and the constitutional duty in Article 22(5) is violated, this was mentioned by Justice Ali Mohammad Magrey in the matter of Tanveer Ahmad Seergojri versus Union Territory of Jammu &amp; Kashmir and ors. This order was passed when 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, more so 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. Respondents were given notice. They appeared through their lawyers and filed a rebuttal affidavit arguing that the detention order is well-founded in fact and law and that the Habeas Corpus Petition should be dismissed. The detenu’s learned counsel has argued that the grounds set forth in the detention order, as well as the material referred to and relied upon, are irrelevant because the detenu was already in custody, and thus there is no risk of the detenu being implicated in activities that are harmful to the public at large. It is argued that in the absence of material, the detention order is based solely on the detaining authority’s ipsidixit, and hence the detention order is illegal. In order to bolster his argument, learned counsel for the petitioner referred to and relied upon on T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. (2006) 2 Supreme Court Cases 664. In terms of the ground asserted, namely, non-communication of the grounds of detention, a review of the file reveals that there is no evidence or suggestion that the grounds of detention, which are couched in English, were explained to the detainee in a language he understood, as there is no evidence to that effect on record. According to the Supreme Court’s decision in “LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427,” the detainee did not speak English, even though the grounds of detention were written in English, and an affidavit filed on behalf of the detaining authority stated that the grounds of detention were fully explained to the detainee while serving. However, the Supreme Court ruled that this was insufficient compliance with Article 22(5), which mandates that the detainees be informed of the reasons for their custody.