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Judgment
Puneet Gupta, J
District Magistrate Baramulla by Order No. 03/DMB/PSA/2023 dated 07.02.2023 has placed one Amir Ahmad Chana S/o Mohd Subhan Chana R/o Azad Gunj, Tehsil Baramulla District Baramulla (hereinafter referred to as the detenue) under the preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State and has lodged in Central Jail, Kotbalwal, Jammu. It is this order, the father of the detenue is aggrieved of and seeks quashment of the same on the following grounds:
i) That the detaining authority has recorded its satisfaction only on the basis of police dossier and the documents relied by the detaining authority have not been provided to the petitioner.
ii) That the grounds of detention are verbatim reproduction of the police dossier.
iii) That although the Senior Superintendent of police has shown six FIR's under ULA(P) Act and other various provisions of the Ranbir Penal Code but were not at all perused by the District Magistrate.
iv) That the petitioner is not well conversant with the English language and translated copies of the documents were not provided to the detenue.
v) That the detenue also submits that earlier the detention order was passed and he was detained but he moved this Court and this Court vide judgment Dated 25-11-2022 quashed the detention order but the District Magistrate has not released him and on the same date the petitioner was again detained under PSA..
Counter affidavit has been filed by the respondents stating therein that the detenue has been detained in pursuance of detention Order No. 03/DMB/PSA/2023 dated 07.02.2023. It is submitted that the detenue has been at the forefront of disturbing the peace in old town Baramulla. The aim and objective of the detenue is to disturb the maintenance of Security of State and to create an atmosphere conductive to the propagation of secessionist ideology. The detenue has been found involved in case FIR No.142/2013, 248/2013, FIR No.263/2016, FIR No.278/2016, FIR No.301/2016, and FIR No.322/2016 P/S Baramulla. The detenue was earlier detained under PSA vide order No. 24/DMB/PSA/2021 dated 21.10.2021, however, the said order was quashed by this Hon'ble Court. However, it has been found that the detenue has been continuously holding conversations with staunch and hardcore associates in the Jail, posing themselves as his relatives and the detenue used to discuss future strategy creating public disorder, prejudicial for the security of the State with his fellow detenues and many separatist elements in Kot Bhalwal Jail Jammu. Accordingly, the Police concerned prepared a dossier and while finding that the activities of the detenue are prejudicial to the security of the State and normal law of land is not sufficient to deter the detenue from his nefarious activities and forwarded dossier alongwith record to the detaining authority with the recommendations to order preventive detention of the detenue. The detaining authority after examining the activities of the petitioner issued Order No. 03/DMB/PSA/2023 dated 07.02.2023. In compliance to the order of District Magistrate, the warrant was executed on 19.02.2023. The petitioner was handed over to Superintendent Central Jail Kotbalwal Jammu for lodgment.
Photocopy of the record is provided by learned counsel for the respondents.
MR. S T Hussain, learned Senior counsel has raised arguments that the petitioner was not provided all the documents which were required to be provided in pursuance to the detention order passed against him. The representation which he could have made before the Advisory Board/Government could not be made as the petitioner was not provided the requisite material on the basis of which he could have filed effective representation. The detention order refers six FIRs, the last being of the year 2016, on the basis of which earlier detention order was passed which came to be quashed by this Court vide judgment dated 25.11.2022. There is no co-relation between the alleged activities of the petitioner and the detention order passed by the detaining authority.
Per contra, learned counsel for the respondents submits that there was sufficient material for the detaining authority to pass fresh order of detention though the earlier one was quashed by this Court vide judgment dated 25.11.2022. The petitioner had earlier figured in six FIRs and continued with his alleged illegal activities It shows that the petitioner is indulging in the anti national activities and being threat to the security of the State. The petitioner was provided all the relevant material but he did not choose to file representation.
Heard learned counsel for the parties and perused the record
The detention order passed by the respondents reveals six FIRs which have been mentioned in the same. Perusal of the record reveals that while executing warrant of detention upon the petitioner, only eleven leaves have been provided to the petitioner. This fact is revealed from the receipt of the relevant record by the petitioner on 19.02.2023. Undoubtedly, the petitioner has been deprived of having requisite material with him which debarred him from making effective representation before the Advisory Board. The very fact that six FIRs stand mentioned in the grounds of detention and only 11 leaves have been provided to the petitioner shows that all the relevant material has not been provided to the petitioner in the matter. Even police dossier is not provided to the petitioner. Providing of material to the petitioner is not mere formality which can be overlooked by this Court. It needs no reiteration that the petitioner was bound to be provided with all the relevant material by the respondents but has not been provided so.
The Hon’ble Apex Court in the judgment rendered in the case “Sophia GulamMohd. Bham v. State of Maharashtra &Ors” (AIR 1999 SC 3051),has held as under:
“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 detenue 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 to the detenue 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
In paras 27 and 28 of the judgment captioned “ThahiraHaris etc. etc. Vs. Government of Karnataka &Ors, reported in AIR 2009 Supreme Court 2184, Hon’ble Apex Court has held as under:
“27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone.
Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.
The petition is required to be allowed on the aforesaid grounds alone The provisions of Public Safety Act cannot be bypassed.
There is no co-relation between the activities mentioned in the detention order and the detention order itself as the last FIR which has been slapped upon the petitioner is of the year 2016. Further, admittedly the detention order came to be passed against the petitioner and the same stands quashed by this Court vide judgment dated 25.11.2022. It has been vaguely mentioned in the detention order that the petitioner is still continuing with his illegal activities which are prejudicial to the security of the nation. It is stated that the detenue is holding conversations with staunch and hardcore associates in the Jail are the allegations which to say at least, are vague. The petitioner remained in custody even after the earlier detention was quashed and was in custody when the present detention order was passed as per the stand of the respondents, the detenue indulging in illegal activities during his detention is the plea which requires outright rejection. The reasons for present detention do not appear to be new and are just an excuse to detain the petitioner.
In Chhagan Bhagwan Kaharv. N. L. Kalna and others[AIR 1989 SC 1234]. The Supreme Court held:
“12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order.
In Jahangir Khan Fazal Khan Pathan v. The Police Commissioner, Ahmedabad and another [AIR 1989 SC 1812], the Supreme Court held:
“……It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.”
Learned Senior Counsel appearing for the petitioner has raised certain other argument in the matter like competence of the respondents to pass the orders but the same needs not to be gone into in the present proceedings in view of the above findings.
The fact is that the petitioner was not supplied the relevant material and deprived of effective representation and the reasons for detention had no relation with the detention. In view of the above, this Court is of the considered view that the order of detention bearing No. 03/DMB/PSA/2023 dated 07.02.2023 is not sustainable in the eyes of law. Accordingly the same is quashed. The petitioner is directed to be released from the custody provided he is not required in any other case.
Disposed of as above.