ABDUL AZIZ DAR                                                                                                          Petitioners
                                                                               versus
STATE OF J&K AND OTHERS                                                                                     Respondents

J&K Public Safety Act, 1978 S. 13 - Detenue not afforded opportunity for making representation to the Government against the order of detention-Order of detention - Not communicated within prescribed time - Held : Detention order bad in law.

Cases referred : Chronological
1. (1985) Suppl. SCC 144
2. (1985) 3 SCR 697
3. (1986) Cr.L.J. 786
4. Prakash Chandra Mehta v. Commissioner and Secretary Govt. Kerla AIR 1986 SC 687
5. Sphia Ghulam Mohammad Bham v. State of Mahrashtra AIR 1999 SC 3051

2. The grounds which are the basis for passing the impugned order are that detenu is a hard-core militant of fundamentalist secessionist organisation known as "Hizbul Mujhadeen". The aims and objects of the organisation are to cause terror amongst the people by resorting to acts of violence in order to achieve the goal of liberation of the Sate of Jammu and Kashmir from Union of India and its accession with Pakistan. The detenu used to deliver sermons to motivate the youths of Kashmir valley to join arms struggle in order to achieve the above stated goals. FIR No. 168 / 87 was registered against him in Police Station Safakadal, Srinagar for the commission of offences under sections 307, 436, 295, 422, 296, 336, 153 - A RPC. After the completion of the investigation he has been facing trial in the Addl. Designated Court under TADA (P) Act in Srinagar. He is lodged in judicial lock-up at Srinagar.

3. That while remaining in judicial lock-up he did not stop his subversive activities. In the month of January, 1999 he held meetings in Central Jail, Srinagar with the detenues who are lodged there. The names of those detenues are given and they number fifteen. He master-minds militant activities outside the Jail by passing messages to militant out-fits through various people who come to meet him. These messages are state to have been conveyed to the following six associates :

1. Munna R/o Nawakadal,
2. Bilal Ahmad R/o Qamarwari
3. Mushtaq Ahmad R/o Saidakadal, Srinagar
4. Tanveer Dar R/o Shopian
5. Nazir Gandroo R/o Chanpora Jamia
6. Farooq Sodagar R/o Malaratha.

The messages were converted into actions resulting into violent acts against the innocent people including personnel of police and other paramilitary forces. This was established from the material which was made available to him. The detenue had fallen sick and it was apprehended that he might get released on bail and while at large spread his activities which would result spurt in militancy related activities. The security of the State would be threatened.

4. The order of detention has been challenged inter-alia on various grounds mentioned in the petition but the learned counsel has laid stress only on one aspect which is non-application of mind on the part of the detaining authority. It is contended that the grounds of detention are vague and on their basis the impugned order could not passed. The counsel has further contended that compliance has not been shown to the mandates of sub-clauses (5) of Art. 22 of the constitution of India because detenue was not granted the opportunity of making representation to the Government on the basis of his detention. The sheet anchor of the allegations contained in the grounds of detention is that the detenue while remaining in the lock-up has been holding meetings with the associates numbering fifteen. No date and time is given when any such meeting was held. The other allegation is that he has been master-minding militant activities outside the Jail by sending messages to the militant out-fits through various people who come to meet him. No name of such person is given who meet him. Of course six persons have been identified who received such messages and then they put them up into covert actions. Under Jail Manual and rules every interview with the detenu is recorded in the concerned register which includes the particulars of the person seeking interview. Date and time of such interview is also recorded. For the subjective satisfaction of the detaining authority the names of such persons and the dates of interview should have been ascertained and then disclosed to the detenue who could make a representation to the Government. The messages which were converted into covert acts of violence also remain in the thick layers of the mystry because no act of violence is mentioned. The particulars of the incidents and the names of the vicitims have not been mentioned. In the grounds of detention, it is also mentioned that order was passed, "on the material made available". The detaining authority has not disclosed what was the material made available to him.

5. From the perusal of the impugned order (Annexure E) it is found that there is no recital to make representation to the government against the said order if the detenu so desires. From the perusal of the copy of the order which is on the official record such communication is inscribed therin.There is also an addition of the detention period and place of lodgment (District Jail, Udhampur). The counsel contends that the detaining authority has maintained duplicate record and he intentionally deprived the detenue of his constitutional right of making a representation to the Government.

6. In rebuttal it has been contended by Mr. Mohammad Amin, G. A. that the detenu was in custody when the impugned order was passed. He was lodged in JIC, Jammu where the order was served on 21.1.2000. He could advance no argument in order to show that order was served within the period as prescribed under section 13 of the Act.

7. The respective contentions of the counsel for the parties have been considered. The grounds of detention ex-facia are found vague as they lack in particulars of time and space. The alleged activities are committed inside Srinagar Jail as an undertrail prisoner. His interview or meeting with any outsider is governed by the Jail Manual / Rules. In case the detaining authority had applied mind he could discover and then disclose full particulars of the activities in question. It is also an admitted fact that the detenu was already in custody of the respondents as he was lodged in JIC, Jammu where the order was served upon him on 21.1.2000. Section 13 of the Act mandates that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making representation against the order to the Government. The impugned order was passed on 30.12.1999 and then executed on 21.1.2000. The detaining authority has to explain why there was a delay of twenty days and why this has not been explained. There is a receipt on the record of detention which shows that, the contents of the impugned order were read over and explained to him in Urdu / Englih / Kashmiri languages and he fully understood them. The receipt is under his signatures. No document / affidavit has been placed on the record which establishes the fact that on 21.1.2000 such person or deponent of the affidavit had explained to him the contents of the detention warrant. The allegation of the detenu that contents of the impugned order were not explained to him in the language which he understood as well as no copy of the grounds of detention was provided to him remains unrebutted.

8. Art. 22(5) of the Constitution of India lays down, "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 order has been made and shall afford him the earliest opportunity of making a representation against the order." The importance of this constitutional provision has been high lighted by the Apex Court in the case of Sphia Ghulam Mohammad Bham v. State of Mahrashtra (AIR 1999 SC 3051). it is laid down that when a person is detained in pursuance of an order made for preventive detention, he is to be provided the grounds on which the order is to be made. He is also to be provided the earliest opportunity of making representation against that order. Both the requirement have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the persons detained by sub-clause(5) of Art. 22 of the Constitution of India and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the detaining authority in supplying the grounds of detention. Para 15 of the judgement is useful which is reproduced hereunder :

"The words ‘grounds used in clause (5) of art. 22 means not only the narration or conclusions of facts; but also all materials on which thosefacts or conclusions which constitute’ grounds are based. In Prakash Chandra Mehta v. Commissioner and Secretary Govt. Kerala AIR 1986 SC 687, (1985)Suppl. SCC 144: (1985) 3 SCR 697; (1986 Cr. L.J. 786), in which an order of detention was passed under section 3(1) of the conservation of Foreign Exchange and Prevention of Smuggling of Activities Act, this court, while examining concept of grounds "used in Ar. 22(5) observed that the word "grounds" has to receive an interpretation which would keep it meaningfully in the tune with the contemporary notions, it was explained that the expression, "grounds" includes not only conclusions of facts but also all the"basic acts" on which those conclusions were founded. The "basic facts" are different from subsidiary fact or further particulars."

9. Adverting to the facts of the present case it is found that there is no basic material on the basis of which conclusions have been drawn in the grounds of detention. In the grounds of detention, respondent No. 2 has admitted that material was made available. This admission is at page (2) para 1 and line (4) of the grounds of detention. Not to talk of providing a copy of such material to the detenu even the material is not disclosed in the grounds of detention. No copy of the grounds of detention was provided to the detenu. The detaining authority was legally required to inform the detenue at the earliest opportunity that he could make a representation against the order of detention to the Government if he desired so. To addfuel to the fire the detaining authority has violated section 13 of the Act by not serving the order within the prescribed limits. The delay has not been explained in writing.

10. It is noticed that the detenue was not an ordinary gun wielding militant but an ideal log of the out-lawed out-fit indulged in the activities of the preaching the cult of violence and polluting the minds of youths of impressionable age. His actions and activities can be of wider and deeper remifications to destablize the lawfully established government and threatening the security of the state. While passing the impugned order, respondent No. 2 should have been more vigilant and dutiful in discharging his functions strictly in accordance with law. The facts have disclosed that he dealt with the matter in a casual and careless manner. Such an approach in dealing with the matters concerning the security of the State portends spurts in the violent activities and erosion in the authority of rule of law. Respondent No. 2 has to explain his conduct as to why this has happened and how it happens. He shall submit his explanation to the Principal Secretary Home, Govt. of J&K within one month who shall thereafter take suitable action.

11. Mr. S. T. Hussain, Counsel for the detenue has made a fervant request for awarding damages against respondent No. 2 as he has breached the fundamental and legal rights of the detenu. He is alleging mala-fides for the alleged detention of his client. Since this is a prayer for awarding damages against the person of respondent No 2 so the detenu is required to prove the mala-fides. This relief can be properly adjudged in a civil court of competent jurisdiction and not in writ jurisdiction. The petitioner can persue this remedy in proper forum.