Zahoor Ahamd Bhat vs State of JandK

Ali Mohd. Magrey, J.—The detenu, Zahoor Ahmad Bhat son of late Gh. Qadir Bhat resident of Mirpora Trigam, Kupawara, through his

mother seeks quashment of detention order no. DMB/PSA/07 of 2014 dated 29.03.2014 purporting to have been passed by District Magistrate

Budgam, with consequent prayer for release of the detenu forthwith.

The detenu, through his mother, challenged the aforesaid order through the medium of HCP no. 43/2014, inter alia, on the grounds that the

order of detention suffers from non-application of mind;

a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso

in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;

b) that the detenu has not been provided the material forming basis of the detention order in the translated form so as to enable him, being an

illiterate person, to make an effective representation against his detention;

c) that the grounds of detention have not been explained to the detenu in the language which he understands; and that the detention order has not

been executed in time, which renders the detention illegal.

In the writ petition, it is contended that respondents have after the arrest of detenu in FIR No. 12/2013 u/s 4 of P. S Act P/s Keran passed the

detention order no. 11/DMK/PSA of 2013 dated 28.10.2013 and during pendency of the writ petition, state- respondent on 27.12.2013 revoked

the order of detention and thereafter passed the impugned order while the detenu in custody in FIR no. 200/2013 u/s 302, 120, 120-B RPC, 7/27

Arms Act P/S Budgam.

Notice was issued to respondents. They appeared through their ld. counsel and sought time to file counter affidavit. Despite various

opportunities respondents have failed to file counter affidavit and their right to file the same has been closed on 10.06.2014.

I have heard learned counsel for the petitioner as well as the learned Additional Advocate General, perused the writ records as well as the

original detention record produced before me and given my thoughtful consideration to the matter.

Ld counsel for the petitioner has submitted that the grounds taken in the detention order and the material referred to and relied upon has no

relevance as because the petitioner is already in custody in FIR no. 200/2013 and has not applied for bail and there were no eminent possibilities

of his release on bail. It is submitted that in absence of material the detention order is passed on mere ipse dixit of detaining authority, therefore, the

detention in bad in law. Ld counsel for the petitioner has in order to strengthening his contention referred to and relied upon T.V. Saravanan @

S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and Another, .

The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an

effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by

the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. In the event such grounds of detention and

materials are not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly

vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to

one such judgment of the Supreme Court herein.

In Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, , the

Apex Court, relying on its earlier judgments in Khudiram Das Vs. The State of West Bengal and Others, ; Smt. Icchu Devi Choraria Vs. Union of

India (UOI) and Others, ; Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, ; Shri. Lallubhai Jogibhai Patel Vs. Union of India

(UOI) and Others, ; Kamla Kanyalal Khushalani Vs. State of Maharashtra and another, and Sunil Dutt Vs. Union of India (UOI) and Others, of

the judgment, has held as under:

Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all

documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in

arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily

and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such

material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach

of the two duties cast on the detaining authority under Article 22(5) of the Constitution.

In Khudiram case (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast

upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied

upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds

of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a

necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention,

because unless the former right is available the latter cannot be meaningfully exercised.

In Lallubhai Jogibhai Patel case (supra), the detenu did not know English, while the grounds of detention were drawn up in English and an

affidavit filed on behalf of the detaining authority stated that the Police Inspector while serving the grounds of detention fully explained the grounds

in Gujarati to the detenu, but the Apex Court held that, that was not a sufficient compliance with the mandate of Article 22(5) which requires that

the grounds of detention must be communicated to the detenu. The Apex Court in that case observed as under:

'Communicate' is a strong word which means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively

and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'grounds' to the detenu is to enable

him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with

him in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.

Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the

detenu was not supplied the materials relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of

grounds of detention. No other material / documents, as referred to in the order of detention and the grounds, are shown to have been supplied to

the detenu. Further, the grounds shown to have been served on and supplied to the detenu are in English language. On these counts alone, in view

of the above settled position of law, the detention of the detenu is vitiated, he having been prevented from making an effective and purposeful

representation against the order of detention.

Accordingly, the detention order no. DMB/PSA/07 of 2014 dated 29.03.2014 is quashed and detenu Zahoor Ahmad Bhat @ Abid Kashmiri

S/o Late Gh. Qadir Bhat R/o Trehgam is directed to be released from custody forthwith. The matter stands accordingly disposed of. Records be

returned to concerned Government Advocate.

For the compensation claimed on account of alleged illegal detention, petitioner is at liberty to seek appropriate remedy.