Riyaz Ahmad Bhat vs Union Territory Of J&K And Another

The present Letters’ Patent Appeal has been preferred against the judgement and order dated 30.09.2020 passed in WP (Crl) No. 597/2019.

By virtue of the judgement and order impugned, the petition has been dismissed and the order of detention passed by the District Magistrate Pulwama

dated 16.10.2019 has been upheld.

Needles to say that the District Magistrate Pulwama, passed the order of detention in purported exercise of powers vested in him under Section 8(a)

of the Jammu and Kashmir Public Safety Act, 1978 (in short “the Actâ€) with a view to preventing the appellant from acting in any manner

prejudicial to the security of the State.

The main ground on which the judgement and order impugned has been challenged is that the material on which the order of detention had been

passed was not supplied to the petitioner, violating the fundamental right of the petitioner as enshrined under Article 22(5) of the Constitution of India.

It was stated that the right vested in the petitioner to make a representation against the order of detention would be rendered illusory, in case the

material based upon which the order of detention had been passed was not supplied to the appellant. Since a reference has been made to 22(5) of the

Constitution, we deem it necessary to reproduce the same to appreciate the constitutional mandate in its correct perspective.

“Article 22(5)

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 the order has been made and shall afford him the earliest opportunity of making a

representation against the order.â€​

In Kirit Kumar Chaman Lal Kundaliya Vs Union Of India and Ors, (1981)2 SCC 436, it was observed that once the documents are referred to in

the grounds of detention, it becomes the bounden duty of the detaining authority to supply the same to the detenue as part of the grounds of detention.

The said view was reiterated in Ramchandra A. Kamat Vs Union of India and Ors, (1980)2 SCC 270 as also in Shri. Tushar Thakker Vs Union of

India and Ors, (1980)4 SCC 499.

In Sophia Gulam Mohd. Bham Vs State of Maharashtra & Ors, (1999)6 SCC 593, it was held that an effective representation could be made by the

detenue only if the copies of the material documents, which was considered and relied upon by the detaining authority were supplied to him. All these

judgements were noticed in Thahira Haris and others Vs Govt. of Karnataka & Ors, (2009)11 SCC 438, wherein in paragraph Nos. 31 & 32, the

Apex Court held as under:-

“31. 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 detenue 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 detenue and the detenue was

prevented from making an effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution.â€​

In the backdrop of the ratio of the judgements discussed herein above, it can be seen that the grounds of detention accompanying the order of the

District Magistrate Pulwama have made a mention of the involvement of the appellant in two separate cases bearing FIR No. 22/20218 registered

under Section 307 of the RPC, 7/27 of the Arms Act and 3/4 of the Explosive Substances Act & FIR No. 25/2018 registered under Section 307 of the

RPC and 7/27 of the Arms Act respectively, both registered with Police Station Pulwama.

The specific case urged by learned counsel for the appellant was that even when the appellant was shown to have been involved in the

aforementioned two cases, yet no documents in the shape of the FIRs and other connected material was ever supplied to the appellant, which would

have enabled the appellant to submit a comprehensive and meaningful representation to the concerned authorities.

It was urged that the learned Single Judge had committed an error in law in holding that the constitutional obligation of the official respondents had

been discharged by supplying all the relevant material in terms of Article 22(5) of the Constitution of India.

On a perusal of the judgment and order impugned, more particularly paragraph 11.1, it can be seen that the learned Single Judge had come to a

conclusion that there was no error of law or procedure committed by the official respondents, which would invalidate the order of detention and this

satisfaction was recorded on the basis of the report of the Advisory Board dated 25.11.2019, wherein it had been recorded that the requirements of

the Act had been complied with.

With a view to verify as to whether the requisite material including copies of the FIRs, of which a mention was made in the grounds of detention

were ever supplied to the appellant, records were summoned. On a perusal of the record, it can be seen that there is a document, which reads as

“receipt of grounds/ relevant papers of detention†which is signed by the appellant- Riyaz Ahmad Bhat as also the Assistant Superintendent,

Central Jail Srinagar. According to this receipt, relevant papers of detention consisting of four leaves, was served upon the detenue-appellant. Not only

this, the contents of the detention order and the ground of detention are stated to have been read over and explained to the detenue in Kashmiri, Urdu

and English languages and further that he was informed that he could make a representation to the Government against his order of detention, if he so

desired.

There is also an execution report separately signed by one Ghulam Qadir, Sub-Inspector, Police Station Pulwama, which reflects that a total of four

leaves were handed over to the detenue, which included PSA warrant â€" one leaf, Notice â€" one leaf and grounds of detention â€" two leaves (in

total four leaves), which were also read over and explained to the detenue in Urdu & Kashmiri languages. The execution report further reads that the

detenue was informed that he could make a representation against his order of detention, if he so desired.

It thus becomes clear that apart from the above, copies of two FIRs bearing Nos. 22/2018 & 25/2018 were never supplied to the appellant. If that be

so, then we cannot persuade ourselves to uphold the finding returned by the learned Single Judge that there was no error of law or procedure

committed by the detaining authorities. The argument of the learned counsel for the appellant that failure to furnish the requisite documents had thus

prevented the appellant from making an effective representation, which had, therefore, violated the constitutional right of the appellant under Article

22(5) of the Constitution of India, is an argument, which is thus legally tenable.

For the reasons mentioned herein above, the judgement and order impugned dated 30.09.2020 is set aside. The order of detention dated 16.10.2019

is quashed. The appellant is directed to be released forthwith, if otherwise not required in any other case.

Disposed of accordingly.