Jammu & Kashmir High Court – Srinagar Bench
Baidar Ahmad Mir vs Ut Of J&K And Others on 31 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP no.11/2024
Reserved on: 19.12.2024
Pronounced on: 31.12.2024
Baidar Ahmad Mir
..........Petitioner(s)
Through: Mr. I. Sofi, Advocate
V/s
UT of J&K and others
.........Respondent(s)
Through: Mr. Syed Musaib, Dy.AG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Order No. DIVCOM-“K”/205/2023 dated 27.12.2023, passed by
Divisional Commissioner, Kashmir (for short “detaining authority”),
whereby detenu, namely, Baidar Ahmad Mir S/o Ghulam Rasool Mir R/o
Jaggerpora District Kupwara, has been detained to prevent him from
committing any of the acts within the meaning of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988, is sought to be quashed and
the detenu set at liberty on the grounds made mention of in the instant
petition.
2. The main grounds on which impugned detention is sought to be
quashed are that the grounds of detention are vague, indefiniteand cryptic,
inasmuch as detaining authority has not attributed any specific allegation
against detenu; that grounds of detention are replica of dossier; that grounds
of detention are not irrelevant but also stale; that two FIRs of 2012 pertain to
ordinary offence, in which challans were presented and detenu acquitted and,
therefore, reference made by detaining authorities to these FIRs has no
relance qua impugned order of detention; that FIR no.103/2022 was
registered in April 2022 and challan filed and said FIR cannot be relied in
December 2023 for passing impugned order of detention; that detenu is not
involved in FIR no.103/2022 nor has he ever been arrested in such FIR.
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3. Counter affidavit has been filed by the respondents. They state that
detenu was found involved in illicit trafficking of drugs. The detenu was
given the material relied upon by detaining authority. They aver that detenu
has criminal bent of mind which is evident from his conduct over a period of
time. The grounds of detention are based on information and evidence
available to detaining authority. Respondents admit that detenu made a
representation through his wife just four days before filing of petition.
Respondent also admit that while detenu expressed a desire for personal
hearing before advisory board but such hearing is not a mandatory
requirement because role of Advisory Board primarily involves reviewing
detention and representation, if any, by person detained rather than
conducting personal hearings. They also aver that impugned detention order
is based on different legal framework, i.e., Prevention of Illicit Trafficking in
Narcotic Drugs and Psychotropic Substances Act, 1988, and bail granted to
detenu under NDPS Act will not affect legality of preventive detention order.
4. To rebut contentions of respondents, Rejoinder has been filed by
petitioner, in which he states that grounds of detention are replica of dossier
submitted by police and there is no independent application of mind by
respondent. It is also stated by petitioner that in order of detention it is
mentioned that detenu is involved in FIR no.103/2022 P/S Trehgam whereas
detenu is not involved in such FIR and that copy of said FIR no.103/2022 P/S
Trehgam has not been furnished to him. Although respondents admit
submission of representation, yet they have not decided it and non-
consideration of representation amounts to violation of Constitutional
mandate as also provisions of the Act of 1988, thereby infringing his
guaranteed rights. Neither Advisory Board considered the representation nor
by respondents, rendering impugned detention illegal and unconstitutional.
5. I have heard learned counsel for parties. I have gone through the
detention record produced by the counsel for the respondents and considered
the matter.
6. In view of the rival contentions of parties and submissions made by
the learned counsel for the parties, it would be relevant to go through the
record on the file. Perusal of grounds of detention reveals that these are
replica of dossier with interplay of some words here and there. This, thus,
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shows non-application of mind and in the process of deriving of subjective
satisfaction, has become causality. While formulating grounds of detention,
detaining authority has to apply its own mind. It cannot simply reiterate
whatever is written in the dossier. It is pertinent to mention here that the
observations of the Supreme Court in the case of Jai Singh and ors vs. State of
J&K” (AIR 1985 SC 764) which are reproduced hereunder:
“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 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.”
7. This Court in the case of Noor-ud-Din Shah v. State of J&K and others
1989 SLJ 1, quashed the detention order as it was found that grounds of
detention was reproduction of the dossier supplied to the detaining authority
and held that it amounted to non-application of mind. The Court observed:
“I have thoroughly by examined the dossier submitted by the Superintendent
of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of
detention formulated by the latter for the detention of the detenu in the
present case, and I find the said grounds of detention are nothing but the
verbatim reproduction of the dossier as forwarded by the Police to the
detaining authority. He has only changed the number of paragraphs, trying in
vain to give it a different shape. This is in fact a case of non-application of
mind on the detaining authority. Without applying his own mind to the facts
of the case, he has acted as an agent of the police. It was his legal duty to find
out if the allegations levelled by the police against the detenu in the dossier
were really going to effect the maintenance of public order, as a result of the
activities, allegedly, committed by him. He had also to find out whether such
activities were going to affect the public order is future also as a result of
which it was necessary to detain the detenu, so as to prevent him from doing
so. After all, the preventive detention envisaged under the Act is in fact only
to prevent a person from acting in any manner which may be prejudicial to
the maintenance of public order, and not to punish him for his past penal acts.
The learned District Magistrate appears to have passed the impugned order in
a routine manner being in different to the import of preventive detention as or
detained in the Act, Passing of an order without application of mind goes to
the root of its validity, and in that case, the question of going into the
genuineness or otherwise of the grounds does not arise. Having found that
the detaining authority has not applied his mind to the facts of the case while3
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passing the impugned order, it is not necessary to go to the merits of the
grounds of detention, as mandated by Section 10-A of the Act.”
8. In view of above settled legal position grounds of detention and
dossier,if similar in language, it tantamountto non-application of mind on the
part of detaining authority. As already noted, in the instant case, it is evident
from that dossier and grounds of detention contain similar expressions which
show that there has been non-application of mind on the part of detaining
authority. Impugned order of detention is, therefore, unsustainable in law on
this ground.
9. The submission urged by learned counsel for detenu,as is also mentioned
in the petition, is that representation made by detenu through his wife has not
been considered by respondents. Respondents admit making of representation
by detenu’s wife, but according to them it is not mandatory to consider or
decide it. Such a submission of respondents is misconceived. The reason being
that law in this regard is settled. The Supreme Court in Tara Chand v. State of
Rajasthan and others, 1980 (2) SCC 321 and Raghavendra Singh v.
Superintendent, District Jail, Kanpur and others (1986) 1 SCC 650, has held
that if there is inordinate delay in considering the representation that would
clearly amount to violation of the provisions of Article 22(5) as to render the
detention unconstitutional and void. In Rajammal v. State of Tamil Nadu and
others, 1999(1) SCC 417, it has been held that it is a constitutional obligation
of the Government to consider the representation forwarded by the detenu
without any delay. Though no period is prescribed by Article 22 of the
Constitution for the decision to be taken on the representation, the words “as
soon as may be” in clause (5) of Article 22 convey the message that the
representation should be considered and disposed of at the earliest.
10. In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC 476, it has been
heldthat there should not be supine indifference, slackness or callous attitude in
considering the representation. Any unexplained delay in disposal of
representation would be breach of the constitutional imperative and it would
render the continued detention impermissible and illegal.
11. Right to make a representation is an enshrined right guaranteed under
Article 22(5) of the Constitution of India. It incorporates a dual requirement:
first, it requires detaining authority to communicate grounds of detention as
soon as may be; and second, it requires to afford detenu an earliest opportunity4
WP(Crl) No.11/2024
to make a representation. Both these procedural requirements are mutually
reinforcing. The communication, as soon as may be, of the grounds of
detention is intended to inform the detenu of the basis on which the order of
detention has been made. The expression “as soon as may be” imports a
requirement of immediacy. The communication of grounds is in aid of
facilitating right of detenu to submit a representation against order of detention.
In absence of grounds being communicated, detenu would be left in the dark
about the reasons which have led to issuance of order of detention. The
importance which the constitutional provision ascribes to communication of
grounds as well as affording of an opportunity to make a representation is
evident from the use of the expression “as soon as may be” in the first part in
relation to communicating the grounds and allowing the detenu “the earliest
opportunity” of availing of the right to submit a representation. Thus, the
significance of Article 22 of the Constitution is that representation submitted by
detenu must be disposed of at an early date. The communication of grounds of
detention, as soon as may be, and the affording of earliest opportunity to submit
a representation against the order of detention will have no constitutional
significance unless detaining authority deals with representation and
communicates its decision with expedition.
12. The provisions of J&K Public Safety Act subscribe to the mandate of
Article 22(5). Section 13 thereof contains a requirement 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, in the language which is
understandable to him the grounds on which the order has been made, and shall
afford him the earliest opportunity of making a representation, against the order
to the Government.
13. Article 22(5) of the Constitution provides for communication of grounds
on which order of detention is made by detaining authority “as soon as may
be”. Section 13 (1) of the Act uses the expression “as soon as may be”,
qualifying it with the requirement that the communication of grounds should
ordinarily not be later than five days and, in exceptional circumstances, for
reasons to be recorded in writing not later than ten days from the date of
detention. Section 8(1) of the Act, thus, also embodies the second requirement
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of Article 22(5) of affording to detenu the earliest opportunity of making a
representation against the order to the appropriate government.
14. Section 15 of the Act mandates a reference to the Advisory Board
constituted under Section 14 of the Act. What Section 15 says is profitable to
be reproduced hereunder:
“Section 15. Reference to Advisory Board.
In every case where a detention order has been made under this Act,
the Government shall, within four weeks from the date of detention
under the order place before the Advisory Board constituted by it
under section 14, the grounds on which the order has been made, the
representation, if any, made by the person affected by the order and
in case where the order has been made by an officer, also report by
such officer under sub-section (4) of section 8.”
15. Under Section 15, the appropriate government has to place the grounds
on which the order of detention has been made within four weeks from the date
of detention of the person together with a representation, if any, made by the
person affected by the order of detention before the Advisory Board constituted
under the provisions of Section 14 of the Act. The Advisory Board, under the
provisions of Section 16 of the Act, after considering the material placed
before it and after calling for such further information as it may deem
necessary from the Government or from the person called for the purpose
through the Government or from the person concerned and if in any particular
case it considers it essential so to do or, if the person concerned desires to be
heard, after hearing him in person, submit its report to the Government within
six weeks from the date of detention.
16. Article 22(5) of the Constitution reflects keen awareness of the framers
of the Constitution that preventive detention leads to the detention of a person
without trial and, therefore, it incorporates procedural safeguards which
mandate immediacy in terms of time. The significance of Article 22 is that the
representation which has been submitted by detenu must be disposed of at an
early date. The communication of grounds of detention, as soon as may be, and
affording of earliest opportunity to submit a representation against order of
detention will have no Constitutional significance unless detaining authority
deals with representation and communicates its decision with expedition.
17. As noted above, it has been contention of learned counsel for petitioner
that a representation was made by detenu’s wife, but that has not been
considered and decided. The requirement under Section 13 of the Act of the
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disclosure and communication of grounds of detention and affording of an
opportunity to detenu to make a representation against such an order to
appropriate government, is distinct from reference to the Advisory Board. The
Supreme Court in Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC
219, laid emphasis on the expeditious consideration of the representation by the
appropriate government. In the said case, a representation was made by
petitioner against detention order to the State Government on 23 rd June 1969,
which was rejected on 19th August 1969, as a reference regarding detention
order was pending before Advisory Board. The Court held that there was an
inordinate delay in considering representation of petitioner. It was observed:
“18. It is established beyond any measure of doubt that the appropriate
authority is bound to consider the representation of the detenu as early as
possible. The appropriate Government itself is bound to consider the
representation as expeditiously as possible. The reason for immediate
consideration of the representation is too obvious to be stressed. The
personal liberty of a person is at stake. Any delay would not only be an
irresponsible act on the part of the appropriate authority but also
unconstitutional because the Constitution enshrines the fundamental right
of a detenu to have his representation considered and it is imperative that
when the liberty of a person is in peril immediate action should be taken
by the relevant authorities.
[…]
20. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound to give
an opportunity to the detenu to make a representation and to consider the
representation of the detenu as early as possible. Secondly, the
consideration of the representation of the detenu by the appropriate
authority is entirely independent of any action by the Advisory Board
including the consideration of the representation of the detenu by the
Advisory Board. Thirdly, there should not be any delay in the matter
of consideration. It is true that no hard and fast rule can be laid down as
to the measure of time taken by the appropriate authority for consideration
but it has to be remembered that the Government has to be vigilant in
the governance of the citizens. A citizen’s right raises a correlative
duty of the State. Fourthly, the appropriate Government is to exercise
its opinion and judgment on the representation before sending the
case along with the detenu’s representation to the Advisory Board.”
(emphasis supplied)
18. As has been held by the Supreme Court in Jayanarayan Sukul (supra),
four principles are required to be followed with respect to representation of a
detenu. First, appropriate authority is bound to give an opportunity to detenu to
make a representation and to consider it as early as possible. Secondly,
consideration of detenu’s representation by appropriate authority is entirely
independent of any action by Advisory Board including consideration of
representation of detenu by Advisory Board. Thirdly, there should not be any
delay in the matter of consideration and it has to be remembered that
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Government has to be vigilant in governance of citizens. A citizen’s right raises
a correlative duty of the State. Fourthly, appropriate Government is to exercise
its opinion and judgment on the representation before sending the case along
with the detenu’s representation to Advisory Board.
19. In the case in hand, it is an admitted position that representation had
been made by petitioner, but same was not considered and/or decided by
respondents. The detention record includes report of the Advisory Board. It
mentions that although detenu was informed about his right of making
representation against his detention to detaining authority as also government,
but no such representation seems to have been made by detenu because no such
representation was lying on the material before the Advisory Board. This would
show and suggest that respondents have not placed copy of representation
before the Advisory Board as was required of them under and in terms of
Section 15 of J&K Public Safety Act. In that view of matter, impugned order of
detention is vitiated.
20. Further to add here that in Ankit Ashok Jalan v. Union of India (2020)
16 SCC 127, it was observed by the Supreme Court that consideration of
representation(s) by appropriate Government and by Advisory Board would
always be qualitatively different and the power of consideration by appropriate
Government must be completely independent of any action by Advisory Board.
In the case of Pankaj Kumar Chakrabarty [Pankaj Kumar Chakrabarty v.
State of W.B., (1969) 3 SCC 400, it was stated by the Supreme Court that the
obligation on the part of the Government to consider representation would be
irrespective of whether the representation was made before or after the case
was referred to the Advisory Board. Any delay in consideration of
representation would not only be an irresponsible act on the part of appropriate
authority but also unconstitutional.
21. In Sarabjeet Singh Mokha v. District Magistrate Jabalpur and others
reported in (2021) 20 SCC 98, the Supreme Court has reproduced certain
observations made by the Supreme Court on the consideration of representation
by appropriate government and by the Advisory Board in Ankit Ashok Jalan
(supra), which are reproduced hereunder:
“39 In a recent decision of a three judge Bench of this Court in
Ankit Ashok Jalan v. Union of India51, Justice UU Lalit revisited
the body of precedent on the subject and noticed the qualitative
difference between the consideration of a representation by the
appropriate government on the one hand and by the Advisory Board8
WP(Crl) No.11/2024
on the other. Justice UU Lalit, speaking for himself and Justice Indu
Malhotra (with Justice Hemant Gupta dissenting52) observed:
“16. These decisions clearly laid down that the
consideration of representations by the appropriate Government
and by the Board would always be qualitatively different and the
power of consideration by the appropriate Government must be
completely independent of any action by the Advisory Board. In
para 12 of the decision in Pankaj Kumar Chakrabarty [Pankaj
Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970)
1 SCR 543] it was stated that the obligation on the part of the
Government to consider representation would be irrespective of
whether the representation was made before or after the case was
referred to the Advisory Board. As stated in para 18, this was
stated so, as any delay in consideration of the representation
would not only be an irresponsible act on the part of the
appropriate authority but also unconstitutional. The contingency
whether the representations were received before or after was
again considered in para 29 of the decision in Haradhan Saha
[Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC
(Cri) 816] .”
Justice UU Lalit categorized the different stages for when a
representation is received and disposed, with the underlying
principle that the representation must be expeditiously disposed
of, at every stage:
“17. In terms of these principles, the matter of consideration of
representation in the context of reference to the Advisory Board,
can be put in the following four categories:
17.1. If the representation is received well before the reference is
made to the Advisory Board and can be considered by the
appropriate Government, the representation must be considered
with expedition. Thereafter the representation along with the
decision taken on the representation shall be forwarded to and
must form part of the documents to be placed before the
Advisory Board.
17.2. If the representation is received just before the reference is
made to the Advisory Board and there is not sufficient time to
decide the representation, in terms of law laid down in
Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1
SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan
Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816]
the representation must be decided first and thereafter the
representation and the decision must be sent to the Advisory
Board. This is premised on the principle that the consideration by
the appropriate Government is completely independent and also
that there ought not to be any delay in consideration of the
representation.
17.3. If the representation is received after the reference is made
but before the matter is decided by the Advisory Board,
according to the principles laid down in Haradhan Saha
[Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC
(Cri) 816], the representation must be decided. The decision as9
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well as the representation must thereafter be immediately sent to
the Advisory Board.
17.4. If the representation is received after the decision of the
Advisory Board, the decisions are clear that in such cases there is
no requirement to send the representation to the Advisory Board.
The representation in such cases must be considered with
expedition.
18. […] it is well accepted that the representation must be
considered with utmost expedition; and the power of the
Government is completely independent of the power of the
Advisory Board; and the scope of consideration is also qualitatively
different, there is no reason why the consideration by the
Government must await the decision by the Advisory Board. None
of the aforesaid cases even remotely suggested that the
consideration must await till the report was received from the
Advisory Board.”
22. Right to make a representation by detenu, it has been said in Sarabjeet
Singh Mokha (supra), creates a corresponding duty upon the Government to
consider the same expeditiously and delay occasioned in deciding it and delay
occasioned in deciding representation renders detention of detenu illegal.
Detenu has every right to know that as to whether his representation was
considered by respondents justly, fairly and reasonably.
23. There is no gainsaying that representation of detenu in the present case
has not been considered muchless decided by respondents, which violates the
procedural rights under the Constitution and the Statute and as a corollary
thereof vitiates and invalidates impugned order of detention.
24. For the reasons discussed above, the petition is disposed of and detention
Order No.DIVCOM-“K”/205/2023 dated 27.12.2023, passed by Divisional
Commissioner, Kashmir, is quashed. Respondents, including Superintendent
Jail concerned, are directed to release the detenu forthwith, provided he is not
required in any other case. Disposed of.
25. Detention record be returned to counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
31.12.2024
Qazi Amjad Secy.
Whether approved for reporting? Yes/No
10
QAZI AMJAD YOUSUF
I attest to the accuracy and
authenticity of this document
WP(Crl) No.11/2024
Srinagar
01.01.2025 14:42