Shahbaz Ahmad Bhat vs State Of J&K And Others

Tashi Rabstan, J

The petitioner, namely, Shahbaz Ahmad Bhat son of Abdul Hamid Bhat, resident of Patipora Tehsil Litter, District Pulwama (hereinafter referred to as „detenue‟) has preferred this habeas corpus petition questioning the detention order bearing No.82/DMP/PSA/19 dated 10.08.2019 slapped on him by respondent No.2 i.e., the District Magistrate, Pulwama, under Section 8 of the J&K Public Safety Act, 1978.

The star ground of challenge putforth by the detenue is that he along with his associates have destroyed the government property but the particulars of the associates have not been provided either in the grounds of detention or in the counter affidavit filed by the respondents. The detenue also contends that the respondents have not mentioned the date and month of alleged loss/damage caused to the property by the detenue and his associates. Further, the challenge thrown by the detenue is that he has not been supplied the relevant material relied upon by the respondents in the grounds of detention, especially, the copies of FIRs and the statement recorded under Section 161 Cr.P.C. The detenue also states that the grounds of detention were never explained to the petitioner in the language with which he is well versed, therefore, the respondents have violated the provisions of the Public Safety Act as well as the Constitution, as a result of which he could not make effective representation against the detention. The detenue also contends that in the grounds of detention four FIRs have been mentioned, however the detenue‟s name has been figured only in one FIR, which clearly shows that the respondents have not applied their mind while passing the detention order.

Reply affidavit has been filed by respondents, objecting the petition.

Heard learned counsel for parties, considered their submissions and perused the record produced by the respondents.

Detenu has been placed under detention vide detention order No. 82/DMP/PSA/19 dated 10.08.2019, passed by District Magistrate, Pulwama, in exercise of powers conferred by Clause (a) of Section 8 of Jammu and Kashmir Public Safety Act, 1978 (for short "Act of 1978") on the ground of his being allegedly involved in destruction of public property as well as several stone pelting cases.

Learned counsel for the petitioner submits that respondents had not disclosed the detenue to which authority or to whom he can represent for redressal of his grievance and as such, deprived him to represent by not disclosing at the relevant point of time. He further states that it was incumbent upon the detaining authority to have informed detenu that he could also make a representation to detaining Authority, if he so desired. This also in itself amounted to infraction of provisions of Section 13 of Act of 1978, read with Article 22(5) of the Constitution of India. To buttress his arguments, learned counsel for petitioner relies upon State of Maharashtra and others v. Santosh Shankar Acharya, (2000) 7 SCC 463, and Tariq Ahmad Dar v. State of J&K & ors. 2017 Legal Eagle 131.

Per contra, learned counsel for respondents has insisted that all the technical requirements had been complied with, more particularly Section 13 of J&K PSA, which required that earliest opportunity of making a representation, be provided to the detenu.

It may not be out of place to mention here that till the Government grants approval to detention order in terms of Subsection (4) of Section 8 of Act of 1978, detaining authority has power to add to, amend, vary or rescind inter alia, any order issued by him which includes a detention order. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51, came to the conclusion that until detention order is approved by the State Government, detaining authority can entertain representation from detenu in exercise of powers of the General Clauses Act of Bombay and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to detenu that he could make a representation to detaining authority so long as the order of detention has not been approved by the State Government in a case where order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of detenu under Article 22(5) of the Constitution of India and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. In the end the Supreme Court held as under:-

"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."

The failure on part of detaining authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, support is drawn from law laid down in ThahiraHaris Etc. Etc.v. Government of Karnataka (AIR 2009 SC 2184) Union of India v. Ranu Bhandari (2008, Cr. L. J. 4567);DhannajoyDass v. District Magistrate (AIR, 1982 SC 1315);Sofia Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR, 1999, SC 3051); and Syed AasiyaIndrabi v. State of J&K &ors(2009 (I) S.L.J 219); and Union of India v. Ranu Bhandari (2008 Cr. L. J. 4567);

Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, to make a representation against his detention. It needs no emphasis that a detenu, on whom preventive detention order is slapped, is held in custody without a formal charge and trial. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), Constitution of India and Section 13 of the Act, thus makes it obligatory for Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenu cannot be expected to make a representation against his detention.

A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenu has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenu. It is well settled law that even where one of grounds, relied upon by Detaining Authority to order detention, is vague and ambiguous, Constitutional and Statutory right of detenu to make an effective representation against his detention are taken to have been violated. Reference in this regard may be made to law laid down in State of Maharashtra &ors v. Santosh Shankar Acharya case (supra); Chaju Ram v. State of J&K AIR 1971 SC 263; Dr.RamKrishan v. The State of Delhi &ors. AIR 1953 SC 318; MohdYousuf Rather v. State of J&K AIR 1979 SC 1925; and GhulamNabi Shah v. State of J&K &ors. 2005(I) SLJ 251.

The Constitution Bench of the Supreme Court in M. Nagaraj & ors. Vs. Union of India & ors. (2006) 8 SCC 212, observed:

"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."

The Nine Judge Constitution Bench of the Supreme Court in I.R.Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1, observed:

"It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution.....

Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & "transcendental", inalienable, and primordial".

Learned counsel for the petitioner submits that in the grounds of detention, the involvement of detenue has been mentioned in four FIRs, however, the petitioner is figured only in one FIR. He further submits that the detenue has not applied for bail in any of the FIRs lodged against him before the trial Court.

A perusal of detention record reveals that the Executing Officer namely, Mr. Sajad Ahmad, Sub Inspector, No.ARP-109273 of Police Station Pulwama, executed only the copy of warrant, notice, grounds of detention, four leaves in total.

It is crystal clear as admitted by the respondents that the relevant documents like copies of FIRs, statement recorded under Section 161 Cr.P.C, dossier etc., relied upon while issuing detention order, have not been supplied to the detenue. Therefore, the violation of provisions of the Public Safety Act as well as Article 22(5) of the Constitution has been done by the respondents.

Thus, it is clear case of non supply of relevant material to the detenue, as admitted by the respondents, to prevent the detenue from making an effective representation against his detention.

For the foregoing reasons, this petition is, disposed of and the impugned detention order bearing No.82/DMP/PSA/19 dated 10.08.2019, passed by District Magistrate, Pulwama, is quashed. Respondents are directed to release the detenue, namely, Shahbaz Ahmad Bhat son of Abdul Hamid Bhat, resident of Patipora Tehsil Litter, District Pulwama, forthwith, provided he is not required in any other case. Record so produced be returned to the respondents.