Jammu & Kashmir High Court - Srinagar BenchMohammad Shafi Magray vs State Of J&K And Ors on 13 March, 2020Author:Ali Mohammad MagreyBench:Ali Mohammad Magrey1\n\n\n\n\nHIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR\n\n\n                {WP (Crl) No. 134/2019}\n\n                                                          Reserved on March 5th .2020\n                                                          Pronounced on 13.03. 2020\nMohammad Shafi Magray\n                                                 ...Petitioner/detenu\n                                Through:    Mr. G.N Shaheen, adv.\n                                vs.\nState of J&K and ors.\n                                                 ...RespondentsThrough :   Mr. Sajad Ashraf Mir, GA\nCoram:Hon'ble Mr. Justice Ali Mohammad Magrey.\nWhether approved for reporting: YES/No\n\n                                Judgment\n            Through the instant petition, petitioner wife of detenu seeks\n\n    quashment of detention order bearing no. 09-DMK/PSA of 2019 dated\n\n    01.03.2019, whereby the detenu namely Muhammad Shafi Magray S/o\n\n    Abdul Gaffar Magray R/o Kandi Khass District Kupwara,                  is under\n\n    detention.2.          In the dossier it is alleged that the detenu came into contact with\n\n    the militants operating in the Kupwara area namely Mudasir Ahamd of\n\n    HM outfit in the year 2006. It is alleged that the detenu became\n\n    sympathizer of the said outfit organization whose aim and object is to\n\n    accede the State of J&K from the Union of India. It is submitted that the\n\n    detenu is a constant threat to the security of the State. It is submitted that\n\n    the detenu was arrested in case FIR no. 306/2018 U/Sec. 13 ULAP Act,\n\n    7/25A Actregistered at Police Station Kupwara. Therefore, on these\n\n    allegations he was slapped underPublic Safety Act, 1978.1|Page23.        The learned counsel for the petitioner-detenu has raised primarily\n\nthree issues before the court questioning the validity of the detention. The\n\nfirst point taken by the learned counsel for the petitioner is that the\n\ndetention order was passed while the detenu was already in custody in\n\nrespect of the FIR No. 306/2018. In these circumstances, it was submitted\n\nby the learned counsel for the petitioner, the detaining authority ought to\n\nhave satisfied himself with the fact that there was imminent likelihood of\n\nrelease of the detenu in that case and that it was necessary to detain the\n\ndetenu in order to prevent him from indulging in prejudicial activities.\n\nAccording to the learned counsel for the petitioner, there is no such\n\nsatisfaction recorded in the grounds of detention.He placed reliance on the\n\ndecision of the Supreme Court in the case ofSurya Prakash Sharma v.\n\nState of U.P. and others: 1994 SCC (Cri) 1691 to submit that since the\n\nsaid satisfaction was not recorded, the detention order was vitiated.4.        The second point taken by the learned counsel for the petitioner\n\nwas that non-supply of relevant material/ documents also vitiated the\n\ndetention order. In this context, it was the case of the petitioner that no\n\ndocuments at all were supplied to the petitioner/detenu. The non-supply of\n\nrelevant documents seriously undermines the capacity of a detenu to make\n\nan effective representation against the detention and that in itself would be\n\na ground to declare the detention order void. This right flows from the\n\nConstitution of India.In support, he referred to the decision of the Supreme\n\nCourt in the case ofSophia Gulam Mohd. Bham v. State of Maharashtra:AIR 1999 SC 3051.5.        The third point raised by the learned counsel for the petitioner\n\nwas based on the provisions ofSection 13of the J&K Public Safety Act,\n\n1978, which require that the grounds of detention should have been2|Page3communicated to the detenu in the language which was understandable to\n\nhim and that he should be afforded the earliest opportunity of making a\n\nrepresentation against the order to the Government. According to him, the\n\ndetenu only understood Kashmiri language and the grounds of detention\n\nwere in English language and no translated copies of the grounds of\n\ndetention in Kashmiri were provided to him. This seriously prejudiced his\n\nright to make an effective representation and on this ground also the\n\ndetention order would be vitiated.6.       On the other hand, Mr. Sajjad Ashraf Mir, GA, defended the\n\nimpugned detention and he responded to each of the points. With regard to\n\nthe first point he submitted that there is a mention in the grounds of\n\ndetention about the arrest of the detenu with reference to the FIR No.\n\n306/2018. Therefore, according to him, the detaining authority was aware\n\nof the fact that the detenu was already in custody when the detention order\n\nwas passed. He, therefore, submitted that the point raised by the learned\n\ncounsel for the petitioner on this score was untenable.7.       With regard to the plea of non-supply of material/ documents,\n\nMr. Mir, placed before me the record pertaining to the detention. On going\n\nthrough the same, I find that there is a signed document said to have been\n\nsigned by the detenu, Muhammad Shafi Magray, in English. The said\n\ndocument is titled "Receipt of Grounds of Detention".8.       Based upon the said receipt, Mr. Mir, submitted that the grounds\n\nof detention had been supplied along with other relevant documents,\n\ntherefore, the petitioner cannot make any grievance on this ground.9.       In so far as the point of supply of translated copies of grounds of\n\ndetention in Kashmiri language is concerned, the learned GA, submitted3|Page4that there was no need to supply translated copies of grounds of detention\n\nin Kashmiri language as grounds of detention had been communicated in\n\nthe language understandable to the detenu. He submitted that it was clearly\n\nindicated in the receipt given that the grounds of detention were read over\n\nand explained to him in Kashmiri language. Therefore, the requirement of\n\nthe constitutional and statutory provisions was entirely met.10.`     Heard learned counsel for the parties, perused the record and\n\nconsidered the matter.11.      I shall take up the first point with regard to the ground of\n\nsatisfaction that has to be recorded by the detaining authority in case the\n\ndetenu is already in custody in connection with some other case.In this\n\ncontext we need to refer to the decision of the Supreme Court inSurya\n\nPrakash Sharma(supra). The relevant paras are extracted herein below:". The question as to whether and in what\n             circumstances an order for preventive detention can be\n             passed against a person who is already in custody has\n             had been engaging the attention of this Court since it\n             first came up for consideration before a Constitution\n             Bench inRameshwar Shaw v. District Magistrate,\n             Burdwan.To eschew prolixity we refrain from\n             detailing all those cases except that ofDharmendra\n             Suganchand Chelawat v. Union of India, wherein a\n             three Judge Bench, after considering all the earlier\n             relevant decisions including Rameshwar Shaw\n             answered the question in the following words:"The decisionsreferred to abovelead\n                to the conclusion that an order for detention\n                can be validly passed against a person in\n                custody and for that purpose it is necessary\n                that the grounds of detention must show that(i) the detaining authority was aware of the\n                fact that the detenu is already in detention:and (ii) there were compelling reasons\n                justifying such detention despite the fact that\n                the detenu is already in detention. The\n                expression "compelling reasons" in the\n                context of making an order for detention of a\n                person already in custody implies that there\n                must be cogent material before the detaining\n                authority on the basis of which it may be4|Page5satisfied that (a) the detenu is likely to be\n              released from custody in the near future, and(b) taking into account the nature of the\n              antecedent activities of the detenu, it is likely\n              that after his release from custody he would\n              indulge in prejudicial activities and it is\n              necessary to detain him in order to prevent\n              him from engaging in such activities.When the above principles are applied to\n              the facts of the instant case, there is no\n              escape from the conclusion that the\n              impugned order cannot be sustained.Though the grounds of detention indicate the\n              detaining authority's awareness of the fact\n              that the detenu was in custody at the time of\n              making the order of detention, the detaining\n              authority has not brought on record any\n              cogent material nor furnished any cogent\n              ground in support of the averment made in\n              grounds of detention that if the aforesaid\n              Surya Prakash Sharma is released on bail "he\n              may again indulge in serious offences\n              causing threat to public order". (emphasis\n              supplied) To put it differently, the\n              satisfaction of the detaining authority that\n              the detenu might indulge in serious offences\n              causing threat to public order, solely on the\n              basis of a solitary murder, cannot be said to\n              be proper and justified.On the conclusions as above we quash the\n              order of detention."12.    Fromthe above decision, it is evident that for an order of\n\ndetention to be valid in respect of a person in custody, it is necessary\n\nthat the grounds of detention must show that; (i) the detaining authority\n\nwas aware of the fact that the detenu is already in custody; and (ii) there\n\nwere compelling reasons justifying such detention despite the fact that\n\nthe detenu is already in detention. The expression 'compelling reasons'\n\nhas also been explained by the Supreme Court as signifying that there\n\nmust be cogent material before the detaining authority on the basis of\n\nwhich it may be satisfied that (a) the detenu is likely to be released from\n\ncustody in the near future, and (b) taking into account the nature of the\n\nantecedent activities of the detenu, it is likely that after his release from5|Page6custody he would indulge in prejudicial activities and that it was\n\nnecessary to detain him in order to prevent him from engaging in such\n\nactivities.13.    In the present case I find that although there is mention of the\n\nfact that the detenu had been arrested in connection with FIR No.\n\n306/2018 but, it is not clear as to whether the detaining authority was\n\naware of the fact that the detenu continued to be in custody.\n\nFurthermore, assume that the detaining authority was aware that the\n\ndetenu was in custody in respect of FIR No. 306/2018, the compelling\n\nreasons,referred to above, have not been indicated in the grounds of\n\ndetention. In other words, the grounds of detention nowhere make a\n\nmention or indicate satisfaction that the detenu was being likely to be\n\nreleased from custody in near future. Therefore, in view of the decision\n\nof the Supreme Court in Surya Prakash Sharma, this alone would\n\nvitiate the detention order.14.    Now move to the second point which pertains to the non-supply\n\nof relevant material in order that the detenu could make an effective\n\nrepresentation against his detention. According to the learned GA, 22\n\nleaves along with dossier have been provided to the detenu. On\n\nexamination of the record there are only ten        leaves which been\n\nprovided to the detenu.15.    The grounds of detention supplied to the detenu were incomplete.\n\nThis in itself would vitiate the detention order as the detenu would have\n\nbeen incapacitated from making an effective representation.16.    The third point which was urged by the learned counsel for the\n\npetitioner was that translated copies of the detention order/ grounds of6|Page7detention were not supplied and this can itself invalidate the detention\n\n                               of the detenu. Reliance was placed on the decision of the Supreme\n\n                               Court in the case ofRazia Umar Bakshi v. Union of India and others:AIR 1980 SC 1751. In that decision, the Supreme Court had observed\n\n                               that where the detaining authority is satisfied that the grounds are\n\n                               couched in a language which is not known to the detenu, it must see to\n\n                               it that the grounds are explained to the detenu, a translated script is\n\n                               given to him and the grounds bear some sort of a certificate to show\n\n                               that the grounds have been explained to the detenu in the language\n\n                               which he understands. In the present case, it is an admitted fact that the\n\n                               grounds of detention in Kashmiri language which is the language which\n\n                               the petitioner understood was not furnished to him. That being the case,\n\n                               this is yet another ground for invalidating the detention order.17.       Viewed thus, the Petition is allowed and the impugned detention\n\n                               order No. 09/DMK/PSA of 2019 dated 01.03.2019, whereunder the\n\n                               detenu namely Muhammad Shafi Magray S/o Abdul Gaffar Magray\n\n                               R/O Kandi Khass, District Kupwara, is quashed. The detenu is directed\n\n                               to be released forthwith. Records be returned to the Government\n\n                               Advocate. No order as to costs.(Ali Mohammad Magrey )\n                                                                                 Judge\n           Srinagar\n           13.03.2020\n           S.A Hussain,\n           Secretaryi)        Whether the order is speaking:     Yes/No.ii)       Whether the order is reportable : Yes/NoSYED AYAZ HUSSAIN2020.03.13 11:46I attest to the accuracy andintegrity of this document7|Page