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Judgment
Hon'ble Per: Justice Virender Singh, J.—After being detained under Jammu & Kashmir Public Safety Act, 1978 (for short hereinafter to be
referred to as 'Safety Act') vide Detention Order
No. 26/DMP/PSA/10 dated 28.05.2010 passed by District Magistrate, Pulwama (respondent No. 2), the appellant (for short 'detenu') through
his father filed HCP No. 176/2010 seeking quashment of the said order on several grounds as detailed in the writ petition, which now stands
dismissed by the learned Single Judge vide judgment dated 04.02.2011, aggrieved thereof, the instant Letters Patent Appeal before us.
The order of detention is effective for twenty four (24) months from the date of detention.
Heard Mr. S.M. Ayoub, Advocate, for the appellant and Mr. Allau-Ud-Din, learned Govt. Advocate. We have gone through the impugned
judgment. Detention record has also been made available to us for our perusal.
Mr. Ayoub submits that the learned Single Judge has not properly appreciated the case of detenu and dismissed the writ petition without
discussing the flaws pointed out. He submits that may be the order of detention was assailed before the Writ Court on several grounds as detailed
in the writ petition, but he would confine his submission with regard to 2/3 basic flaws which make the detention order unsustainable.
At the very outset, the learned counsel submits that perusal of the detention order passed u/s 8 of the Safety Act shows that the detenu has been
detained as a preventive measure from acting in any manner, which is prejudicial to the maintenance of pubic order. Therefore, the order of
detention would survive for twelve (12) months only as it would fall within the ambit of Section 18(1)(a) of the Safety Act, for which, the maximum
period of detention is twelve (12) months from the date of detention. The detenu is in custody since 30th of May, 2010 and by efflux of time, the
detention order has already outlived its life, as such, cannot be made effective beyond the statutory period inspite of the fact that the State has
confirmed the said order of detention for twenty four (24) months.
The learned counsel then submits that not only the order of detention deserves to be quashed on the aforesaid basic flaw in it being not in
conformity with the mandatory provisions of the Safety Act, it is not sustainable on account of another procedural defect which, in turn, infringes
the safeguards embodied in Article 22(5) of Constitution of India. The entire material as reflected in the dossier of the detenu and made basis of
passing the detention order has not been made available to the detenu in the jail enabling him to make an effective representation. He submits that
in the grounds of detention, the involvement of the detenu is shown from year 2001 onwards when incidentally a case bearing F.I.R. No. 107/2001
was registered against him. Thereafter, he is shown to have been booked and arrested in another case bearing F.I.R. No. 42/2007. Then, in the
month of April, 2010 also another case bearing F.I.R. No. 58/2010 is shown to have been registered against him on 04.04.2010. While he was in
custody in this case, the detention order came to be passed on 28.05.2010 i.e. after the lapse of about one month and more than three weeks
indicating that normal laws are not sufficient to deter him from indulging in nefarious activities. Therefore, it was the duty of the detaining authority to
make the entire material, on which it was relying, available to him enabling him to put forth his case, if he so desired. He goes on to submit that the
detenu was already in jail and possibly he could not have any access to all these documents, may be, all the cases shown in the dossier relate to
him only. He has, thus, been deprived of his constitutional right to make an effective representation within the prescribed statutory period.
Learned counsel lastly submits that even otherwise there were no reasons much less compelling reasons to pass the detention order as the
detenu was already in custody in a case of substantive offence and had never applied for bail. Therefore, there was no immediate threat to the
State with regard to disturbance of any public order. The live link is missing and there appears to be no justification for passing the detention order.
Per contra, Mr. Alla-Ud-Din, learned Govt. Advocate, submits that may be in the detention order, initially the District Magistrate has observed
that the detenu is being detained to prevent him from indulging into the activities which are prejudicial to the maintenance of public order, but
subsequently the said order was approved by the Advisory Board and thereafter the Financial Commissioner (Home) on behalf of the State in
exercise of powers conferred by Section 17(1) of Safety Act, confirmed the order of detention and directed vide order dated 22.07.2010 that in
view of the security of the State, he is to be detained for a period of twenty four (24) months. The learned State counsel then submits that even
otherwise, in the grounds of detention, it is observed by District Magistrate (respondent No. 2) that the normal laws are not sufficient to deter the
detenu from indulging in activities which are prejudicial to the security of the State and his remaining at large will pose a threat to the public order.
Therefore, the initial order of detention needs to be read in consonance with the grounds of detention and not in isolation, as ultimately it merges in
the final order of the Government dated 22.07.2010 whereby the detenu was detained for a period of twenty four (24) months for preventing him
from indulging in the activities prejudicial to the security of the State. On this pretext, Mr. Din submits that the case of the detenu would, in fact, not
fall within four-corners of Section 18(1)(a) of the Safety Act wherein detention period of twelve (12) months from the date of detention is
prescribed, instead it would fall u/s 18(1)(b) wherein detention period of two years from the date of detention is prescribed.
So far as non-supply of relevant material to the detenu in the jail by the detaining authority is concerned, the State counsel submits that
immediately after the passing of the detention order, on 30.05.2010 itself, all detention papers were handed over to him through Jail
Superintendent, District Jail Kathua and he was also informed that he could make representation to the government against the detention order.
The detenu had also put his signatures in token of receipt of the detention papers. He goes on to submit that no representation to the Home
Department has been made by the detenu despite having been informed by the District Magistrate in terms of Section 13 of the Safety Act. Had
there been any representation from him, the Advisory Board could consider the same before giving its opinion. It is only after the State Advisory
Board had opined that there was sufficient material for detention of the appellant, the order of detention was confirmed vide order dated
22.07.2010 by the Home Department. According to the learned State counsel, all these aspects are borne out from the detention record and the
learned Writ Court after perusing the same and considering the activities of the detenu, ultimately upheld the detention order. On the same
rationale, the present appeal also deserves to be dismissed.
Let us take up the first issue with regard to the period of detention of the detenu i.e. twenty four (24) months from the date of detention. In this
regard, relevant extract of detention order No. 26/DMP/PSA/10 dated 28.05.2010 passed by District Magistrate, Pulwama (respondent No. 2)
u/s 8 of the Safety Act needs to be reproduced. It reads thus:-
Whereas on the basis of dossier placed before me by Sr. Supdt. of Police Pulwama vide his No. CRB/PSA-10/1751 dated 21.05.2010, I am
satisfied that to prevent Sh. Arshad Ahmad Parray S/o Sh Mehraj Ud Din Parray R/o Chowan Tehsil Shopian District Shopian from acting in any
manner which is prejudicial to the maintenance of public order, it is necessary to detain you under Public Safety Act, 1978;"" (emphasis supplied)
Chapter IV of the Safety Act deals with power to make orders for detaining persons. The detention order is passed u/s 8 of this Chapter. It
reads:-
Detention of certain persons
(1) The Government may-(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order; or
[(ii) Omitted]
[(a-1)
(2)................
(3)................
(4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government
together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such
order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.
Reading of Section 8(1)(a)(i) makes it clear that order of detention is to be passed in respect of any person as a preventive measure in two
situations viz.,
(i) when the act is prejudicial to the security of the State; and
(ii) when the act is prejudicial to the maintenance of the public order. The order of detention can also be passed in other situations as well with a
view to prevent a person from smuggling timber, or abetting the smuggling of timber, or engaging in transporting or concealing or keeping smuggled
timber, or dealing the smuggled timber otherwise than by engaging in transporting or concealing or keeping in smuggled timber, or harbouring
persons engaged in smuggling of timber or abetting the smuggling of timber, or with regard to such person, who is (i) a foreigner within the meaning
of the Foreigners Act; (ii) a person residing in the State of J&K under the Occupation of Pakistan with a view to regulating his continued presence
in the State or with a view to making arrangements for his expulsion from the State. However, we are not concerned with all these situations, so far
as present case is concerned.
Section 8(1)(a)(i) is to be read in consonance with Section 18 where maximum period of detention is prescribed under the Safety Act. For
ready reference, Section 18 reads thus:-
Maximum period of detention.-
(1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed u/s 17, shall be -
(a) twelve months from the date of detention in the case of persons acting in any manner prejudicial to the maintenance of public order or indulging
in smuggling of timber; and
(b) two years from the date of detention in the case of persons acting in any manner prejudicial to the security of the State.
(2) Nothing contained in this section shall affect the powers of the Government to revoke or modify the detention order at any earlier time, or to
extend the period of detention of a foreigner in case his expulsion from the State has not been made possible.
Conjoint reading of Section 8(1)(a)(i) and Section 18 makes it clear that the detention order passed with regard to the 'security of the State' is
kept different from 'maintenance of the public order' and that is the reason that in these two different situations, maximum period of detention is also
described differently. In a case of 'maintenance of the public order' it is twelve (12) months from the date of detention, whereas in a case of
'security of the State' it is two (2) years from the date of detention.
Perusal of provisions of Safety Act further shows that after the passing of the detention order u/s 8 by the District Magistrate, it is required to
be approved by the Government as is the requirement of Section 8(4) of Safety Act. The detenu who is detained pursuant to detention order is
also to be informed of the grounds of detention on which the order has been passed affording an early opportunity of making representation against
the order to the Government as envisaged u/s 13 of the Safety Act. The next step is that the detention order along with the grounds on which it has
been made, the representation if any made by the person affected by the order, is placed before the Advisory Board constituted u/s 14 of the
Safety Act. It is thereafter the Advisory Board forms its opinion with regard to the sufficient cause for detaining a person or for revoking the
detention order as envisaged u/s 17 of the Safety Act. It is then only that the Government confirms the detention order and continue with it for a
period as it thinks fit. If the Advisory Board does not find any sufficient cause for the detention of the person concerned, it is incumbent upon the
Government to revoke the detention order and release the person detained forthwith. For reference, Section 17 reads thus:-
Action upon report of Advisory Board
(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government
may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned,
the Government shall revoke the detention order and cause the person to be released forthwith.
After order of detention is confirmed u/s 17 by exhausting the entire procedure as detailed hereinabove, the maximum period of detention is
fixed by the Government. Another important aspect as contained in the Safety Act itself and described in Section 19 is that there is no bar for the
Government to make fresh order of detention against a person on the same facts as the earlier order of detention made against him by
revoking/modifying the earlier order. However, the fresh order of detention in such like situation can be passed where the earlier order of detention
or its continuance is not legal on account of technical defect or the earlier order of detention is revoked by reason of any apprehension or for
avoiding any challenge that such order or its continuance is not legal on account of any technical defect. In both the situations when the fresh order
of detention is passed, the period of detention for which the person is already detained under the earlier order is to be excluded.
For ready reference, Section 19 is also reproduced and it reads thus:-
Revocation of detention orders
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Samvat 1977, a detention order may at any time be revoked or
modified by the Government notwithstanding that the order has been made by any officer mentioned in sub-section (2) of section 8.
(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against
such person in any case where-
(i) the earlier order of detention or its continuance is not legal on account of any technical defect; or
(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance
is not legal on account of any technical defect;
Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained,
the period during which such person was under the earlier order of detention shall be excluded.
As we understand, the provisions of the Safety Act are not at all detenu friendly, instead it gives vast powers to the Government even to the
extent of revoking the earlier order of detention and pass fresh order, if it comes to the notice that the earlier order is not legal on account of any
technical defect. Technical defect means the defect as per the provisions of the Safety Act only and not beyond that. The detenu cannot possibly
raise any objection to it, but for the period of detention, which safeguard is already there in the Section 19 itself as the detention order cannot be
beyond two years from the initial date of detention even after passing of a fresh order by revoking the earlier one as the time already spent by the
detenu is to be excluded.
Let us now appreciate the facts of the present case strictly within the four corners of provisions of the Safety Act. Perusal of the detention
record shows that after the State Advisory Board constituted u/s 14 of the Safety Act had examined the grounds of detention and the other
relevant material placed before the Board, it opined that there was sufficient material to detain the detenu under the Safety Act. It is thereafter,
Financial Commissioner (Home) on behalf of the State while exercising the power conferred by Section 17(1) of the Safety Act confirmed the
initial order of detention dated 28.05.2010 passed by District Magistrate and while confirming the said order further directed that in view of the
security of the State, the subject is detained for a period of twenty four (24) months. This order bears Government Order No. Home/PB-
V/1608/2010 dated 22.07.2010. It goes without saying that the order dated 22.07.2010 detaining the detenu for twenty four (24) months is
passed keeping in consideration the 'security of the State' and not preventing the detenu from acting in any manner prejudicial to the 'maintenance
of the public order' on the basis of which the initial order dated 28.05.2010 was passed. On the other hand, the Advisory Board has finally
approved the earlier detention order of detenu in which the detenu is detained with regard to maintenance of public order only. The entire
complexion is, thus, changed. The Govt., in its wisdom, if wanted to change the language of the earlier order of detention dated 28.05.2010 by
mentioning 'security of the State' instead of 'maintenance of public order', it could do on the same set of facts but, in turn, it would be a fresh order
after removal of some technical defect. However, in its strict sense, it would not amount to passing of fresh order strictly in terms of Section 19 of
the Safety Act, but assuming for the sake of an argument, if it is taken as an order after removal of the legal defect in the earlier order so that the
detenu is prevented from acting in any manner prejudicial to the security of the State so as to detain him for the maximum period of twenty four
(24) months as prescribed u/s 18 of the Safety Act, in that eventuality, it was incumbent upon the State to make the fresh order available to the
detenu in the jail enabling him to respond to it. Admittedly, that is not the fact position in the case at hand and, therefore, we find no difficulty in
holding that it is only the first order dated 28.05.2010 passed by the District Magistrate which would remain in force, in which the detenu has been
detained with a view to prevent him from acting in any manner prejudicial to the 'maintenance of the public order', for which, the maximum period
of detention prescribed is twelve (12) months from the date of detention. This order, in any case, cannot be read for the purpose of detaining him
with a view to prevent him from acting in any manner prejudicial to the 'security of the State', for which, the maximum period of detention is two
years.
Concededly, period of twelve (12) months has already elapsed as the detenu has been detained on 30.05.2010 on the strength of detention
order dated 28.05.2010 and the same was communicated to him in the jail on 30.05.2010. The period of twelve (12) months, as such, has already
elapsed in the month of May, 2011. Thereafter, his further detention in this very case would be uncalled for. The aforesaid statutory weakness in
the order of detention makes it inoperative, as such, unsustainable.
Although the aforesaid vital flaw in itself is sufficient to quash the detention order slapped upon the detenu, yet we would like to delve deep into
another aspect i.e. non-supply of the entire material to the detenu in the jail enabling him to make an effective representation to the Government.
As per the dossier, the detenu is shown to have been initially involved in a case bearing F.I.R. No. 107/2001 u/s 13 U.L.A. registered in
Police Station Rajora. Thereafter, he is booked in another case F.I.R. No. 42/2007 in Police Station Rajpora. On 04.04.2010, he is booked in
the third case bearing F.I.R. No. 58/2010 in which certain recoveries of arms and ammunition are allegedly shown from him. When he was in
custody in this very case, he was detained in the present detention order dated 28.05.2010. It is not possible that a person who is detained on one
fine day by the detaining authority would always keep all the material with him with regard to the previous involvement in other cases. Even
otherwise in the jail, the detenu would have no access even to his own documents. Therefore, irrespective of the fact that detenu already knows
something about the material reflected in the grounds of detention, still it is incumbent upon the detaining authority to supply all the relevant material
when the order of detention is executed upon him. Information to the detenu is the requirement of the Statute as contained in Section 13 of the
Safety Act. He has to be afforded an earliest opportunity of making effective representation against the order of detention to the Government. His
representation has ultimately to be considered by the Advisory Board for the purpose of confirmation of the detention order or revoking thereof.
Unless he is provided with the entire material on which the detaining authority has applied its mind, he cannot make an effective and purposeful
representation before the authority concerned.
We have perused the detention record in this regard. There is a communication available on the record dated 28.05.2010 whereby the detenu
was informed of the detention order. On the foot of this communication, we find that copy of the said communication along with copy of grounds
of detention was sent to Superintendent Jail, Kathua for delivering the same to the detenu in the jail. It is not mentioned anywhere that alongwith the
grounds of detention the entire material viz., copies of the FIRs, reference thereof made in the grounds of detention or any other relevant material
upon which the detaining authority is relying, is also provided to the detenu. On the backside of the copy of the detention order, it is mentioned that
one Head Constable Mohd. Yousuf No. 116 of Police Station Rajpora in compliance to the direction of District Magistrate, Pulwama went to the
jail and furnished the grounds of detention to the detenu. However, contents of grounds of detention are shown to have been read over and
explained to the detenu in Urdu/ Kashmiri. It is further mentioned that the detention papers have also been handed over to District Jail Authority,
Kathua and the concerned authority has also informed the detenu that he could make representation to the Government against the detention order,
if he so desired. The detenu has also put his signatures. On a specific query put to the State Counsel, whether except all this material referred to
hereinabove, any other document indicating that the copy of each F.I.R. and other material was made available to the detenu, he candidly admits
that although in the detention record, copy of the F.I.R.s in vernacular (Urdu) are available, but he does not find any document showing that all this
material was made available to the detenu in the jail.
In case Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , the Supreme Court has observed that effective representation by
the detenu can be made only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming
his opinion are supplied to him.
In case Thahira Haris etc. Vs. Government of Karnataka and Others, in para 25 observed thus:-
This Court in Common Cause, A Regd. Society Vs. Union of India (UOI) and Others, para 11 observed that effective representation by the
detenu can be made only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his
opinion were supplied to him.
In the aforesaid judgment only, their lordship while quashing the impugned detention order of the detenu, in para 29 observed thus:-
On proper construction of clause (5) of Article 22 read with section 3(3) of COFEPOSA Act, it is imperative for valid continuance of
detention that the detenu must be supplied all documents, statements and other materials relied upon in the grounds of detention. In the instant case,
admittedly, the relied upon documents, the detention order of Anil Kumar was not supplied to the detenu and the detenu was prevented from
making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Construction.
In another case titled Union of India (UOI) Vs. Ranu Bhandari, , the Apex Court while dealing with the same issue, in para 18 observed thus:-
Mr. Choudhary derived support for his aforesaid contention from the decision of this Court in M. Ahamedkutty Vs. Union of India (UOI) and
Another, , wherein it was reiterated that the right under Article 22(5) is a right to make an effective representation and when some documents are
referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. The
detenu, therefore, had the right to be supplied with the grounds of detention along with the documents which were referred to or relied upon and it
there was failure or even delay in furnishing those documents, it would amount to denial of making an effective representation. It was also observed
that it was immaterial whether the detenu already knew about their contents or not, but the non-supply of the copies thereof was fatal as was held
in Mehrunissa Vs. State of Maharashtra, . It was emphasized that in order to appreciate this point it would have to be kept in mind that the detenu
is in jail and has no access even to his own documents.
Following the ratio of the aforesaid judgments on the admitted facts of the present case, it can comfortably be said that non-supply of the
relevant material to the detenu has resulted into infringement of his valuable right as enshrined under Article 22(5) of the Constitution of India and
this is a serious flaw in itself.
The learned Single Judge while refuting the contention made in this regard on behalf of the detenu has observed that the grounds of detention
have been furnished to detenu and he has been informed about the right to make representation. The learned Single Judge further observes that the
detenu has not made any representation and in case he would have made representation and if same would have been rejected, it could be safely
said that the non-supply of material forming base for the grounds of detention has disabled the detenu from making an effective representation and
it could be a ground available. We are not inclined to appreciate the observation made by the learned Single Judge on this aspect as the entire
burden has been shifted upon the detenu to prove his innocence. This is not the correct position of law.
In case Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, , the Hon'ble Apex Court has held that it is enough for the
detenu to say that he is under the wrongful detention and the burden lies on the detaining authority to satisfy the Court that the detention is not
illegal or wrongful and that the petitioner is not entitled to the relief claimed. It is well settled that it is incumbent upon the State to satisfy the Court
that the detention of the detenu is legal and in conformity not only with the mandatory provisions of the Safety Act but also strictly in accord with
the constitutional safeguard embodied under Article 22(5).
Even otherwise, the conceded factual aspect of the present case is that, but for grounds of detention, the other relevant material has not been
furnished to the detenu and, therefore, he has been deprived of making an effective representation.
Since we have already entered into detailed discussion with regard to the aforesaid two main weaknesses in the present case, we do not feel
the necessity of detaining ourselves any further in discussing other flaw(s) as pointed out by learned counsel for the detenu.
As a sequel to the aforesaid discussion, the net result is that the order of detention bearing No. 26/DMP/PSA/10 dated 28.05.2010 slapped
upon the detenu cannot sustain. Therefore, we allow the instant appeal, set aside the impugned judgment and quash the said detention order. The
person of Arshad Ahmad Parray S/o Mehraj-ud-Din Parray R/o Chowan, Shopian, Tehsil & District Shopian shall be released from preventive
detention in the present case forthwith provided he is not involved in any other case. Authority concerned be informed accordingly.
Detention record be returned to Mr. Din, learned Govt. Advocate.