Mohammad Yousuf Mir vs State and Others

Virender Singh, J.—Vide this judgment, I intend to dispose of the aforesaid three Habeas Corpus Petitions involving the same issues for

adjudication.

Mohammad Yousuf Mir is detained under Detention Order No. 25/DMS/PSA/2010 dated 12.11.2010, Mohammad Amin Lone under

Detention Order No. 27/DMS/PSA/2010 dated 12.11.2010 and Mohammad Ashraf Lone under Detention Order No. 26/DMS/PSA/2010

dated 12.11.2010. All these detention orders have been passed by District Magistrate, Shopian. They seek quashment of the said three detention

orders by three different writ petitions at hand.

Perusal of the grounds of detention shows that all the three detenues are shown to be involved in Timber Smuggling Trade for the last about

8/11 years. In this regard, several FIRs also came to be registered against them. Mohammad Yousuf Mir is shown to be active in this illegal dealing

from year 2004 onwards, Mohammad Amin Lone from year 2003 onwards and Mohammad Ashraf Lone from year 1999 onwards. All the three

detenues, however, have been booked in case FIR No. 454 dated 03.11.2010 and thereafter the detention orders. It relates to the timber

smuggling of Kail green, cost thereof is shown to be about Rs. 2.50 lac. This is all what weighed with the District Magistrate, Shopian for passing

detention orders.

All the three detention orders are assailed virtually on the following grounds:

(a) There is a considerable delay in executing the detention order(s), inasmuch as -they were passed on 12.11.2010 and not given effect upto

23.12.2010. This delay is not explained and therefore, the object of the detention stands defeated by losing the nexus. As per the averments in all

the three petitions, it is specifically averred that they were taken in custody by the police on 23.12.2010.

(b) The entire material has not been supplied to the detenues in the jail, enabling them to make effective representation(s) by putting forthwith their

defence/innocence and as such, they have been deprived of their Constitutional right enshrined under Article-22(5) of the Constitution of India.

(c) As per the dossier/grounds of detention, all the three detenues are booked in different cases triable by the Ordinary Criminal Court(s) and

therefore, there were no compelling circumstances with the District Magistrate to pass the detention orders.

In opposition, the stand of the State-respondent is that all the three detenues had been successful in giving slip to the Law Enforcing Agency by

taking all extensive precautions and also keeping their associates well equipped with Arms and Lethal Weapons and ultimately, on 03.11.2010

when they had dared to smuggle the illicit timbers, they were intercepted by the forest officials and during the process, some officials of the forest

were also attacked. Their active involvement in timber smuggling was going unabated for the last ten years and ultimately finding their activities

highly prejudicial to the preservation of forest welfare of District Shopian, District Magistrate, Shopian passed three separate detention orders qua

the present three detenues.

With regard to the formal arrest of the detenues, State has submitted an evasive reply.

Heard Mr. Iqbal, learned counsel representing all the three detenues and Mr. Thakur, appearing for the State. The relevant record also perused.

Assailing the detention orders, Mr. Iqbal has primarily confined his arguments with regard to the aforesaid flaws only.

Learned counsel submits that the detention orders were passed on 12.11.2010 and not given effect upto 23.12.2010. Thus, there is delay of

forty (40) days in execution. This delay by itself is enough to quash the detention orders. He goes on to submit that the specific date(s) given by the

detenues of their arrest has not been denied by the State in its counter. In fact, it is evasive reply filed by the State and, therefore, it amounts to

admission of a fact. He further submits that in rejoinder to the counter filed by the State, it has been specifically stated that the respondents-State

has evaded reply to important/legal aspect asserting in so many words that the orders of the detention have been served upon the detenues after

undue delay and without assigning any reason for such delay. State, therefore, now, cannot get out of this legal flaws staring at all the three

detention orders. Learned counsel has drawn the attention of the Court to the counter affidavit filed by the State and rejoinder thereto.

In support of his submissions, Mr. Iqbal relies upon the following judgments of the Hon'ble Supreme Court of India and of this Court:

(i) K.P.M. Basheer Vs. State of Karnataka and another, ,

(ii) Manju Ramesh Nahar Vs. Union of India and Others, and

(iii) Abdul Ahad Tantray v. State of J&K (2010 (3) JKJ[HC] 292), (2004 (I) S.L.J. 165).

Dwelling upon his case on the second flaw, Mr. Iqbal submits that all the relevant material, reference thereof is made in the grounds of

detention, has not been made available to the detenu(s) and, therefore, they have been deprived of their constitutional right of making effective

representation(s), as such, violation of Article-22(5) of Constitution of India.

According to the learned counsel, each of the detenu has been shown to be involved in various Criminal Cases triable by Ordinary Criminal

Court. Some of the cases are of year 1999. The detenues have specifically denied their involvement in all these cases. Therefore, a duty was cast

upon the detaining authority to supply all the relevant material including the copies of the FIR to each of the detenu in the jail itself, so as to afford

an opportunity to them to make effective representation(s) within the statutory prescribed period. He submits that in the present three cases, no

pain has been taken by the detaining authority to complete this exercise. This flaw by itself is of very serious nature which has far reaching

consequences, as liberty of an individual is involved in it.

Mr. Iqbal lastly submits that even otherwise there was no compelling reasons with the detaining authority to pass the detention orders with

regard to the present three detenues, as the offences for which they were earlier booked or booked few days before passing the detention orders

are all substantive offences, which are

triable by Ordinary Criminal Court(s). Therefore, apparently, there was no justifiable ground to slap the present detention orders upon them.

Per contra, Mr. Thakur reiterates, what is already said in the counter affidavit filed by the State.

Arguments advanced by Mr. Iqbal with regard to delay in execution of the detention order(s), apparently appears to be somewhat attractive but

when appreciated in its right perspective, after perusing the detention record, in my view, would not put him on any advantageous position.

No doubt, the counter affidavit filed by the District Magistrate is in the shape of evasive reply, virtually reproducing the grounds of detention. It

is a casual approach, which is not appreciated, that too in a petition of Habeas Corpus where the District Magistrate after perusing the entire

dossier submitted before him has to arrive at his subjective satisfaction. Such type of cases should not be treated in a very casual manner. Anyhow,

the detention record is available to the Court for its perusal.

It is specifically asserted by the detenues that they were arrested on 23.12.2010. If one goes by the averments made in the petition(s), at one

or two places it appears that the detenues want to project that they were arrested and detained under the detention orders on 12.11.2010, the

date of passing the detention orders. But in the grounds taken for assailing the detention order(s), it is specifically averred that the detenues were

arrested on 23.12.2010. In the detention record available with Mr. Thakur, learned State counsel, the execution of the detention orders is shown

on 05.01, 2011. From this fact, Mr. Iqbal rather wanted to take more advantage by adding another twelve (12) days saying that the delay now is

stretched to fifty two (52) days, Perhaps that is not the situation in the present cases. All the three detenues are involved or booked in case FIR

No. 454 dated 03.11.2010 as mentioned hereinabove in the starting paras. That was the last FIR against them before the detention order(s) was

slapped upon them. No formal date of arrest of any of the detenues is indicated by the State in its reply. As already said it is an evasive reply. But

the fact remains that even as per the averments made by the present three detenues, they are showing their arrest on 23.12.2010. Therefore the

execution will start only when a person is arrested. Thereafter only, if there is an unreasonable and unexplained delay, it turns out to be fatal. No

time period is prescribed for execution of order of preventive detention. Delay in execution of detention renders the detention illegal, if the detenu is

available for the execution of the order and still it is not executed by the detaining authority. But if the detenu is not available, no fault can be

attributed to the executing agency. If the detenu is already in custody and still the detention order is executed with delay that too unreasonable and

unexplainable, the detention order deserves to be quashed.

At the cost of repetition, it is the case of the detenues themselves that they were arrested on 23.12.2010 and if we take it that the detention

order is executed on 05.01.2011, it is just after 12 days. This can not be said to be an unreasonable/undue delay on the face of it so as to quash

the detention order(s).

Viewed thus, on facts, Mr. Iqbal can not derive any advantage from the aforesaid judgments cited by him.

However, I am in an agreement with the submissions advanced by Mr. Iqbal with regard to other glaring flaw of non-supply of material to the

dctenues so as to provide them an opportunity to make effective represenlation(s).

As per the dossier supplied to each of the detenu, their involvement is shown in different FIR(s) registered at different stages starting from year

1999 in one or two cases and ending in November 2010 with the latest one (FIR No. 454) registered against all the three detenues.

Admittedly, the copies of the FIR(s) along with other material, on which the detaining authority is relying upon, have not been supplied to any

of the detenu(s). Detention record which in the possession of Mr. Thakur also speaks of that fact. Mr. Thakur admits also it.

It is not possible that a person who is to be detained on any day by the detaining authority, would always keep all the material with him with

regard to his previous involvement in other cases. In the present case, it is denied. Even otherwise, in the jail, the detenu would have no access to

his own documents. Therefore, irrespective of the fact that the 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, enabling the detenu, who is confined in the jail, to make

his effective representation before the authority concerned, in support of his case so that his reply is appreciated in its right perspective by the

Advisory Board.

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 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 cases, it can be comfortably said that non-supply of all the

relevant material to the detenu(s) has resulted into infringement of their valuable right as enshrined under Article 22(5) of the Constitution of India

and this serious flaw by itself is enough to quash the detention orders slapped upon them.

At the same time, there appears to be no compelling reasons much less justifiable reasons with the detaining authority to pass orders of

detention. Without entering into a detailed discussion in this regard, as I have already held the detention order(s) unsustainable on another vital

flaw, discussed hereinabove, I have felt the necessity of referring to the grounds of detention prepared by District Magistrate, Shopian, in which

while referring to the activities of each of the detenu resulting into lodging of different FIRs in the past about 10 years, has observed that normal law

has not broken their activities. This approach is not a correct approach, as it simply means that the detaining authority is of the view that the justice

would not be done by the Criminal Court(s). If the State for long 10 years is not able to curb their activities, this reflects the weakness of the State.

The concerned authority in its wisdom had never thought of detaining any of the detenu under the preventive law and allowed their activities to

continue and ultimately waiting for such a long period, on one fine morning thought it imperative to pass the preventive detention order(s), so as to

restrain them from further indulging into such like activities (smuggling of limber of forest). This action of the State does not appeal to judicial

conscience, which is embodiment of reasoning.

It must be kept in mind when a person is detained, his liberty is curtailed. Undoubtedly, restraint can be put on the liberty of an individual but

there has to be proper material and justifiable subjective satisfaction of the detaining authority.

Casual approach in such type of matters will not be appreciated by the Court, as no one can be allowed to play with the liberty of an individual

enshrined under Constitution of India.

At the same time, it certainly calls for a serious note that the forest welfare is being damaged and therefore, whosoever is responsible for it has

to be dealt with sternly. The Law Enforcing Agency should not extend any leniency in this regard.

However, as a sequel to the aforesaid discussion, the detention order(s) slapped upon the present three detenues by District Magistrate,

bearing order No. 25/DMS/PSA/2010 dated 12.11.2010 in respect of Mohammad Yousuf Mir, Detention Order No. 27/DMS/PSA/2010 dated

12.11.2010 qua Mohammad Amin Lone and Detention Order No. 26/DMS/PSA/2010 dated 12.11.2010 qua Mohammad Ashraf Lone deserve

to be quashed.

Ordered accordingly.

All the aforesaid three detenues shall be released forthwith provided they are not required in connection with any other case.

Copy of the judgment be kept on record of each case.

Registrar Judicial to convey the order to the concerned without any delay.