Abdul Aziz Dar vs State of J&K and Others

This habeas corpus petition has been filed by Mr. Mohiuddin Dar who is the uncle of the detenue namely, Abdul Aziz Dar son of Mohammad

Sidiq Dar resident of Saidakadal. Srinagar. In pursuance of order No. Div. Commr:/PSA/SGR/1 dated: 30121999, the Divisional Commissioner,

Kashmir detained the said Abdul Aziz Dar under section 8 of the J&K Public Safety Act, 1978 (hereinafter to be referred to as the Act). The

copy of the order which has been served upon the detenue does not disclose the period of detention. The record of his detention in original recites

the period of detention for two years. The place of lodgment in District Jail. Udhampur is another addition in that order.

The grounds which are the basis for passing the impugned order are that detenue is a hardcore militant of fundamentalist secessionist

organisation known as ""Hizbul Mujahedeen"". The aims and objects of the organisation are to cause terror amongst the people by resorting to acts

of violence in order to achieve the goal of liberation of the State of Jammu and Kashmir from Union of India and its accession with Pakistan. The

detenue used to deliver sermons to motivate the youths of Kashmir valley to join arms struggle in order to achieve the above stated goals. FIR No.

168/87 was registered against him in Police Station Safakadal. Srinagar for the commission of offences under sections 307, 436, 295, 422, 296,

336, 153A RPC. After the completion of the investigation he has been facing trial in the Addl. Designated Court under TADA (P) Act in Srinagar.

He is lodged in judicial lockup at Srinagar.

That while remaining in judicial lockup he did not stop his subversive activities. In the month of January, 1999 he held meetings in Central Jail,

Srinagar with the detenues who are lodged there. The names of those detenues are given and they number fifteen. He masterminds militant activities

outside the Jail by passing messages to militant outfits through various people who come to meet him. These messages are stated to have been

conveyed to the following six associates.

Munna R/O Nawakadal.

Bilal Ahmad R/O/Qamarwari.

Mushtaq Ahmad R/O Saidakadal, Srinagar.

Tanveer Dar R/O Shopian.

Nazir Gandroo R/O Chanapora Jamia.

Farooq Sodagar R/O Malaratha.

The messages were converted into actions resulting into violent acts against the innocent people including personnel of police and other para

military forces. This was established from the material which was made available to him. The detenue had fallen sick and it was apprehended that

he might get released on bail and while at large spread his activities which would result spurt in militancy related activities. The security of the State

would be threatened

The order of detention has been challenged interalia on various grounds mentioned in the petition but the learned counsel has laid stress only on

one aspect which is nonapplication of mind on the part of the detaining authority. It is contended that the grounds of detention are vague and on

their basis the impugned order could not be passed. The counsel has further contended that compliance has not been shown to the mandates of

subclause (5) of Article 22 of the Constitution of India because detenue was not granted the opportunity of making representation to the

Government on the basis of his detention. The sheetanchor of the allegations contained in the grounds of detention is that the detenue while

remaining in the lockup has been holding meetings with the associates numbering fifteen. No date and time is given when any such meeting was

held. The other allegation is that he has been masterminding militant activities outside the Jail by sending messages to the militant outfits through

various people who come to meet him. No name of such person is given who meet him. Of course six persons have been identified who received

such messages and then they put them up into covert actions. Under Jail Manual and rules every interview with the detenue is recorded in the

concerned register which includes the particulars of the person seeking interview. Date and time of such interview is also recorded. For the

subjective satisfaction of the detaining authority the names of such persons and the dates of interview should have been ascertained and then

disclosed to the detenue who could make a representation to the Government. The messages which were converted into covert acts of violence

also remain in the thick layers of mystery because no act of violence is mentioned. The particulars of the incidents and the name of the victims have

not been mentioned. In the grounds of detention, it is also mentioned that order was passed, ""on the material made available"" The detaining

authority has not disclosed what was the material made available to him.

From the perusal of the impugned order (Annexure E) it is found that there is no recital to make representation to the Government against the

said order if the detenue so desires. From the persual of the copy of the order which is on the official record such communication is inscribed

therein. There is also an addition of the detention period and place of lodgment (District Jail, Udhampur). The counsel contends that the detaining

authority has maintained duplicate record and he intentionally deprived the detenue of his constitutional right of making a representation to the

Government.

In rebuttal it has been contended by Mr. Mohammad Amin GA, that the detenue was in custody when the impugned order was passed. He was

lodged in JIC, Jammu where the order was served on 21012000. He could advance no arguments in order to show that order was served within

the period as prescribed under section 13 of the Act.

The respective contentions of the counsel for the parties have been considered. The grounds of detention exfacie are found vague as they lack in

particulars of time and space. The alleged activities are committed inside Srinagar Jail as an under trial prisoner. His interview or meeting with any

outsider is governed by the Jail Manual/rules. In case the detaining authority had applied mind he could discover and then disclose full particulars of

the activities in question. It is also an admitted fact that the detenue was already in custody of the respondents as he was lodged in JIC, Jammu

where the order was served upon him on 21012000. Section 13 of the Act mandates that when a person is detained in pursuance of a detention

order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for

reasons to be recorded in writing not later than ten days from the date of detention communicates to him grounds on which the order has been

made, and shall afford him the earliest opportunity of making representation against the order to the Government. The impugned order was passed

on 30121999 and then execution on 21012000. The detaining authority has to explain why there was a delay of twenty days and why this had not

been explained. There is receipt on the record of detention which shows that the contents of the impugned order were read over and explained to

him in Urdu/English/Kashmiri languages and he fully understood them. The receipt is under his signatures. No document/affidavit has been placed

on the record which establishes the fact that on 21012000 such person or deponent of the affidavit had explained to him the contents of the

detention warrant. The allegation of the detenue that contents of the impugned order were not explained to him in the language which he

understood as well as no copy of the grounds of detention was provided to him remains unrebutted.

Article 22 (5) of the Constitution of India lays down, ""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 order has been

made and shall afford him the earliest opportunity of making a representation against the order"" The importance of this constitutional provision has

been high lighted by the Apex Court in the case of Sophia Ghulam Mohammad Bham Vs. State of Maharshtra (AIR 1999 SC 3051). It is laid

down that when a person is detained in pursuance of an order made for preventive detention, he is to be provided the grounds on which the order

is to be made. He is also to be provided the earliest opportunity of making 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 persons detained by subclause (5) of article

22 of the Constitution of India and if any of the rights is violated, in the sense that 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. Para 15 of the judgment is useful which is reproduced hereunder.

The words ""grounds used in clause (5) of article 22 means not only the narration or conclusions of facts: but also all materials on which those facts

or conclusions which constitute ""grounds are based. In Prakash Chandra Mehta Vs. Commissioner and Secretary Government of Kerala AIR

1936 SC 687. (1985) Suppl. SCC 144: (1985) 3 SCR 697: (1986 Cr. L.J. 786). in which an order of detention was passed under section 3 (1)

of the conservation of Foreign Exchange and Prevention of Smuggling of Activities Act, this court, while examining concept of grounds ""used in art.

22 (5) observed that the word ""grounds"" has to receive an interpretation which would keep it meaningfully in tune with the contemporary notions, it

was explained that the expression, ""grounds"" includes not only conclusions of fact but also all the ""basic facts"" on which these conclusions were

founded. The ""basic facts"" are different from subsidiary facts or further particulars.

Adverting to the fact of the present case it is found that there is no basic material on the basis of which conclusions have been drawn in the

grounds of detention. In the grounds of detention, respondent No. 2 has admitted that material was made available. This admission is at page (2)

para 1) and line (4) of the grounds of detention. No to talk of providing a copy of such material to the detenue even the material is not disclosed in

the grounds of detention. No copy of the grounds of detention was provided to the detenue The detaining authority was legally required to inform

the detenue at the earliest opportunity that he could make a representation against the order of detention to the Government if he desired so. To

add fuel to the fire, the detaining authority has violated section 13 of the Act by not serving the order within the prescribed limits. The delay has not

been explained in writing.

It is noticed that the detenue was not an ordinary gun wielding militant but an idealog of the outlawed outfit indulged in the activities of

preaching the cult of violence and polluting the minds of youths of impressionable age. His actions and activities can be of wider and deeper

ramifications to destablize the lawfully established government and threatening the security of the State. While passing the impugned order,

respondent No. 2 should have been more vigilant and dutiful in discharging his functions strictly in accordance with law. The facts have disclosed

that he dealt with the matter in a casual and careless manner. Such an approach in dealing with the matters concerning the security of the State

portents spurts in the violent activities and erosion in the authority of rule of law. Respondent No. 2 has to explain his conduct as to why this has

happened and how it happened. He shall submit his explanation to the Principal Secretary Home. Govt. of J&K within one month who shall

thereafter take suitable action.

Mr. ST. Hussain counsel for the detenue has made a fervent request for awarding damages against respondent No. 2 as he has breached the

fundamental and legal rights of the detenue. He is alleging malafides for the alleged detention of his client. Since this is a prayer for awarding

damages against the person of respondent No. 2 so the detenue is required to prove the malafides. This relief can be properly adjudged in a civil

court of competent jurisdiction and not in writ jurisdiction. The petitioner can pursue this remedy in proper forum.

In view of the discussion made above, the impugned order is found suffering from patent illegalities. In the result, the petition is accepted and

the impugned order is set aside with a direction to the respondents to release the detenue forthwith provided his detention is not otherwise required

in accordance with law. Copy of this order be sent to the Principal Secretary Home, Govt. of J&K. Srinagar for perusal and necessary action. The

record be returned to the concerned Government advocate.