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Judgment
Puneet Gupta, J
The District Magistrate,Shopian by Order No.144/DMS/PSA/2022 dated 28.06.2022 has placed Sartaj Ahmad Naik S/o Abdul Majeed Naik R/o Mantribugh, Shopian under the preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State and has been lodged in District Jail, Baramulla. The detention order has been impugned by the petitioner through his father 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 the normal laws could have been invoked against the petitioner in case there was any reason for the respondents to proceed against the petitioner;
iv) That the representation filed by the petitioner through his brother has not been considered by the authorities concerned which had prejudiced the petitioner;
It is also submitted that the grounds of detention are vague and do not justify the passing of the detention order. The counter affidavit has been filed by the respondents stating that the detenue came to be detained under the provisions of the Act of 1978 validly and legally. All statutory requirements and constitutional guarantees have been fulfilled and complied with by the Detaining Authority. The entire material relied upon by the detaining authority came to be furnished to the detenue well within statutory period provided under section 13 of the Act. In compliance to detention order, the warrant was accordingly executed by Executing Officer namely ASI Abdul Hamid No.132/CID of District Police Lines Shopian and the detenue was handed over to Assistant Superintendent District Jail Baramulla, for lodgement. The contents of the detention order/warrant and the grounds of detention were read over and explained to the detenue in the language which he fully understood and in lieu whereof the detenue subscribed his signatures on the Execution report. The detenue was also well informed about his right of making of representation to the detaining authority or to Government against his detention. The detenue has been ordered to be shifted from District Jail, Baramulla to District Jail Yamuna Nagar, Haryana vide government order No. Home/PB V/1712 of 2022 dated: 20.07.2022. Further, in terms of sub-section (4) of section 8 of the Act, a copy of the order was endorsed to the Home Department for approval and accordingly the Government Home Department vide order No. Home/PB-V/1487 of 2022; dated: 04.07.2022 has approved the order of detention issued against the detenue. Further, in terms of section 15 of the Act, the instant case was referred to Advisory Board for its opinion. The Advisory Board has, in terms of section 16 of the Act after considering the material placed before it held that there is sufficient cause for the detention of the detenue in the instant case and accordingly the Govt. vide order No. Home/PB V/2013 of 2022 dated: 22.08.2022 confirmed the order of detention issued against the detenue.
Photocopy of the record is provided by learned counsel for the respondents.
Learned counsels for the parties have argued the matter as per the averments made in the respective pleadings.
The purpose of the detention order is not to punish the person but to prevent him for carrying out any illegal activity in future on the basis of his past conduct. The power of preventive detention order is a precautionary power exercising in a reasonable anticipation. It may or may not relate to an offence and that the pendency of the prosecution is no bar to an order of preventive detention order and vice versa is what is held by the Hon’ble Supreme Court in celebrated case of Haradhan Shah Vs. State of West Bengal (1975) 3 SCC 198.
At the outset, it is suffice to note that nothing has been brought on record to show that the material which has been considered by the detaining authority while passing the detention order has been furnished to the detenue. The execution report and the receipt of grounds of detention dated 04.07.2022 when read together mention of only two leaves having been provided to the petitioner meaning thereby that probably except for grounds of detention no other material was provided to the petitioner by the executing authority of the detention order. The detention order is itself based upon the dossier provided by the Senior SP of Police Shopian to the District Magistrate. What prevented the detaining authority from providing the dossier to the petitioner at the time of execution of warrant is not made know to the court. There appears to be no reason as to why the petitioner should not have been provided with the dossier or any other material pertaining to the detention. This very flaw in the proceedings carried out by the respondents knocks out the validity of detention order. The constitutional guarantee of providing the relevant material to the petitioner has been flouted and cannot be condoned.
In Sophia Ghulam Mohd. Bham v. State of Maharashtra and others” (AIR 1999 SC 3051), it has been held:
“…….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 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 non-supply of the relevant material to the petitioner is itself a ground to quash the detention order.
The record reveals that the dossier provided by the SSP Shopian and the grounds of detention (styled as dossier with the detention order) are in fact on the same lines. There appears to be prima facie no independent satisfaction recorded by the District Magistrate while passing the detention order. For all practical purposes the grounds of detention are reproduction of the dossier provided by the police to the District Magistrate. Apparently, the manner in which the grounds of detention have been formulated by the detaining authority does not make out any independent subjective satisfaction recorded by the District Magistrate-respondent No.2 in the present petition. It is profitable to refer the judgment rendered in “Jai Singh and ors. vs. State of J&K” (AIR 1985 SC 764) wherein it has been held:
“First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father‟s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of …….”
Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into „you‟ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.”
The judgment when applied in the facts and circumstances of the case leaves no doubt in the mind of the Court about non-application of mind by the detaining authority while passing the detention order.
Last but not the least, the assertion made by the petitioner that he made representation to the District Magistrate, Shopian through his brother on 12.07.2022 but not considered remains uncontroverted in the reply filed by the respondents. It requires no reiteration that the representation, if made by the petitioner against the detention order, the authorities concerned are obliged to consider the same and pass the orders as they deem necessary. The non-consideration of the representation made by the petitioner is indeed in violation of the constitutional guarantee provided to the petitioner. The detention order indeed suffers from illegality on the aforesaid count.
In view of the above, this Court is of the considered view that the order of detention bearing No. Order No. 144/DMS/PSA/2022 dated 28.06.2022, passed by the respondent No.2 is not sustainable in the eyes of law. Accordingly, the same is quashed. The petitioner is directed to be released from the custody provided if he is not required in any other case.
The photo-copy of the detention record if required by the respondents can be taken back by the counsel for the respondents.