A detention order will be vitiated if grounds for detention are not communicated: High Court of Jammu and Kashmir

 507 FH HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Through V.M) Case no.No. 177 2020 Reserved on 03.06.2021 Pronounced on. 28.06.21 Majid Ahmad Bhat Union Territory of J&K and ors …Petitioner Mr. G.N Shaheen adv. Through : Coram: Hon’ble Mr. Justice Ali Mohammad Magrey. Mr. Mir Suhail AAG JUDGMENT Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 36 DMP PSA 20 dated 09.11.2020 to have been passed by District Magistrate Pulwama whereunder detenu namely Majid Ahmad Bhat s o Abdul Ahad Bhat R o Karimabad Tehsil Pulwama is under detention. The detenu through his father challenges the aforesaid detention 2. order through the medium of aforesaid petition inter alia on the grounds that the order of detention suffers from non application of mind “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 under FIR no. 256 2017 the detenu applied for bail but instead booked in case FIR no. 223 2018 u s 302 307. 120 B RPC and 7 27 A. Act. b) that there is total non application of mind while passing the detention order without reflecting any plausible ground c) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order d) that the detaining authority has not prepared the grounds itself which is a pre requisite for him before passing any detention order e) that while passing the order of detention against the detenu the respondent no.2 has violated all the procedural safeguards enshrined in Art. 22of the Constitution of India f) that the allegations made in the grounds of detention are vague non existent and no prudent man can make a representation against such allegations and passing of detention order on such grounds is unjustified and unreasonable.” 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 seeks dismissal of the Heabus Corpus petition. The learned counsel for the petitioner has raised primarily four 4. issues before the Court questioning the validity of the detention. The first point taken by the learned counsel for the petitioner is that the detention order was passed while the detenu was already in custody in respect of the criminal case under FIR No. 256 2017. In these circumstances it was submitted by the learned counsel for the petitioner the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of release of the detenu in that case and that it was necessary to detain the detenu in order to prevent him from indulging in prejudicial activities. According to the learned counsel for the petitioner detenu there is no such satisfaction recorded in the grounds of detention. He placed reliance on the decision of the Supreme Court in the case titled “Anant v. State of Maharashtra reported as AIR 1987 Supreme Court 137 Surya Prakash Sharma v. State of U.P. and others: 2017SLJ 650 AIR 1999 Supreme Court 3051 1994 SCC1691 2007SLJ 136 to submit that since the said satisfaction was not recorded the detention order was vitiated. 5. The second point taken by the learned counsel for the petitioner was that non supply of relevant material documents also vitiated the detention order. In this context it was the case of the petitioner detenu that no documents at all were supplied to the petitioner detenu. The non supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention order and that itself would be a ground to declare the detention void. The third point raised by the learned counsel for the petitioner was based on non application of mind of the detaining authority with reference to having not mentioned that the detenu was already in custody while passing the detention order. 7. The fourth point raised by the learned counsel for the petitioner detenu was based on vagueness in grounds of detention. 8. The learned counsel for petitionerfurther submits that the detenu has not been provided the material referred to in the grounds of detention resultantly the right of making effective representation against the impugned order of detention as enshrined under Article 22of the Constitution has been violated. On the other hand Mr. Mir Suhail learned GA defended the order of detention and he responded to each of the points. With regard to the first point he submitted that there is a mention in the grounds of detention about the arrest of the detenu with reference to the FIR Nos. 256 2017 and 223 2018. Therefore according to him the detaining authority was aware of the fact that the detenu was already in custody when the detention order was passed. He therefore submitted that the point raised by the learned counsel for the petitioner on this score was untenable. With regard to the plea of non supply of material documents Mr. Mir Sushail learned GA mailed photo copy of the record pertaining to the detention. On going through the same I find that there is a signed document said to have been signed by the detenu Majid Ahmad Bhat in the shape of receipt. Based upon the said receipt Mr. Mir Suhail learned GA submits that the grounds of detention had been supplied along with other relevant documents and therefore the petitioner detenu cannot make any grievance on this ground. With regard to the non application of mind detaining authority having mentioned the reason for detaining the detenu activities are jeopardizing the peace security and tranquillity of the UT of J&K and in the grounds of detention as prejudicial to the Security of the State. It is submitted that there is not non application of mind the security of the State or jeopardizing the peace security and tranquillity of the State is almost the same. With regard to plea of vagueness of the grounds is concerned Mr. Mir Suhail learned GA submits that the grounds are clear and without any ambiguity. 13. Mr. Mir Suhail learned GA submits that insufficiency of supply of material shall not form a ground for vitiating the detention of the detenu. He further submits that the detenu was required to file representation on the material whatever supplied and could have projected the grounds of non supply of the material before the detaining authority which he has failed therefore non supply of material vitiates the detention has no substance. He further averred that there is no non application of mind or vagueness in grounds. He has referred to and relied upon the Judgment reported as AIR 2001 Supreme Court 301 titled R. Keshava Vs. M. B. Prakash and Ors. Mr. Mir Suhail GA further submits that the impugned order of detention is well founded in fact and law and there is nothing bad about it. He submits that the detenu has been provided the material relied upon by the detaining authority while detaining him. He further submits that the detenu has also been informed about his right of making representation against his detention. He submitted that the detaining authority has fully applied its mind while issuing the detention order and there is nothing on record to controvert it. Learned State Counsel referred to and relied upon the law laid down in 1981 4) SCC 216 AIR 1975 1143 2002 SCC 735 AIR 2000 SC 301. 15. I have heard learned counsel and considered the matter and perused the records. As per pleadings and contentions raised at bar the main ground of attack projected by petitioner against the detention in question is that grounds of detention were not duly communicated to him which prevented him from making an effective representation against the same and thereby he was deprived of an important constitutional right and that the detaining authority did not apply his mind while passing the detention order and has not revealed as to on what materials he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu have not filed any bail application in any court for his release in the FIR(s) registered against him. 16. 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 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 case titled LallubhaiJogibhai Patel v. Union of India vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 18. That being so the grounds of challenge set up by petitioner succeed and the detention stands vitiated. Other grounds urged do not therefore need to be separately addressed. 19. The petition is accordingly allowed and detention order no. 36 DMP PSA 20 dated 09.11.2020 purporting to have been passed by District Magistrate Pulwama under which the detenu namely Majid Ahmad Bhat s o Abdul Ahad Bhat R o Karimabad Tehsil Pulwama under detention. is quashed with direction for his release forthwith. 20. The petition stands accordingly disposed of. No order as to the 21. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Judge i)Whether the order is speaking: ii)Whether the order is reportable : Yes No costs. Srinagar S.A Hussain Secretary 

Summary: Article 22 clause (5) of the Indian constitution grants the right to representation against a detention order. Unless the grounds for detention are communicated to the detenu, he will be unable to make effective representation and hence an order can be vitiated if the grounds are not communicated. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Magrey in the case of Majid Ahmad Bhat v Union Territory of Jammu and Kashmir [Case no. (WP Cri No, 177/2020)] on 28th June 2021. The petitioner, Majid Ahmad Bhat was placed under preventive detention through the order passed by District Magistrate, Pulwama on 9th September 2020. As a result of this, a Heabus Corpus petition was filed with a prayer to quash the detention order on the grounds that it suffers from non-application of mind.  It was brought to the notice of the court that no documents or information was supplied to the petitioner explaining to him why he was detained. It was contended by the petitioner’s counsel that firstly there was no satisfactory reason recorded by the state as to why the petitioner was retained and secondly since he was not made aware about the reason of his detention, the petitioner was not given the right to effectively represent himself. For these reasons the petitioner concluded that the detention order should be declared void. The counsel representing the state defended the impugned order stating was the preventive detention was based on the past record of the petitioner. The state contended that the petitioner should have simply filed representation based on whatever material he was supplied and that insufficient material should not be sole grounds to vitiate the order. The court declared that by not duly communicating the grounds of detention to the petitioner, the state his violated the constitutional rights and so it was clear that the detaining authority did not apply their mind in this case. The court also cited the case of Lallubhai Jogibhai Patel v Union of India [(1981) 2 SCC 427], where the Supreme Court vitiated a detention order stating that that not communicating the grounds of detention to the detenu in a way understandable to him would violate his right to make representation against the same.