Judgment:
ORDER
S.S. Ahmed, J.
1. This petition is directed against the order dated April 7, 1992, passed by District Magistrate Jammu under Section 8(2) of the J&K; Public Safety Act, for short the Act, detaining the petitioner in Jail for a period of two years.
2. From the facts set out in the petition, it appears that the petitioner was first arrested in FIR No. 159 of 1991 of Police Station City Jammu. But the police after investigation submitted a final report and the petitioner was given benefit of Section 169 of the Code of Criminal Procedure and was released.
3. Immediately thereafter petitioner was arrested in FIR No. 286 of 1991, but in spite of the order of the Court dated March 16, 1992, by which bail was granted to the petitioner, he, namely, the petitioner, was not released and, on an inquiry, he was informed that he was also under arrest in FIR No. 242 of 1991. In this case also he was granted bail by order dated March 28, 1992.
4. It is stated in the petition that while granting bail to the petitioner in FIR No. 286 of 1991 by order dated March 16, 1992, the Special Judge Jammu under the Terrorist and Disruptive Activities (Prevention) Act, 1987 had imposed a condition that the petitioner shall not leave the Municipal area of Jammu and would report after every fort-night to the Special Court. It is further stated that after release on bail, petitioner had been reporting to the Special Court under TADA (P) Act alongwith his counsel on various dates. But on June 26, 1992 when he had gone to report to the Special court, Jammu, he was, while coming out of the gate of Central Jail, Jammu, where the Special Court located, arrested in execution of the order of detention dated April 7, 1992, passed by the District Magistrate, Jammu under Section 8(2) of the Act.
5. The order of detention appears to have been approved by the State Government on April 18, 1992. The grounds of detention contained in Annexure-P2, were served on the petitioner on the same day i.e. on June 26, 1992 (as stated in the counter-affidavit). This date is disputed by the petitioner who has contended in his petition that the grounds of detention were served on him on July 3, 1992. Since the petition is being disposed of on other grounds, the controversy with regard to the date on which the grounds of detention were served upon the petitioner shall not be noticed or scrutinised any further.
6. The petitioner was produced before the Advisory Board July 14, 1992 and the State Government confirmed the order of detention dated April 7, 1992 by its order dated August 12, 1992.
7. Respondents have filed three counter-affidavits. First counter-affidavit has been sworn by Shri Jawahar Lal Asstt. Supdt. Central Jail, Jammu in which it is stated that on the receipt of the grounds of detention on June, 1992 the same were served upon the petitioner on the same day and the contents thereof were also explained to the petitioner in Urdu language which he fully understood. The petitioner was also informed by him that he could make a representation to the State Government against the order of detention.
8. The second counter-affidavit has been sworn by Mr. Prabhat Singh. SHO police station City Jainmu. In this counter-affidavit, it is stated that the petitioner was arrested in FIR No. 259 of 1991, but was given benefit of Section 169 of Code of Criminal Procedure. He was thereafter arrested in FIR No. 286 of 1991, registered at Police Station City Jammu for offences under Terrorist and Disruptive Activities (Prevention) Act, 1987, for short TADA, but was released on bail by order dated March 16, 1992. Petitioner was also under arrest in FIR No. 242/1991, registered at Police Station City Jammu, but in this case also he was granted bail on March 28, 1992.
9. The third counter-affidavit has been sworn by Mr. Anil Goswami, District Magistrate, Jammu.
10. Learned Counsel, for petitioner has contended that although the impugned order of detention was passed by respondent No. 2, Mr. Parvez Dewan, District Magistrate, Jammu, but the counter-affidavit in this case has been sworn by Mr. Anil Goswami who became the District Magistrate, Jammu, after Mr. Parvez Dewan was shifted from here. It is contended that since the counter-affidavit has not been sworn by the detaining authority but by another Officer who was not the detaining authority, the counter-affidavit of Mr. Anil Goswami is liable to be ignored.
11. Normally, in all cases where a detention order is challenged, the counter-affidavit is to be filed by the detaining authority. But this is not an inflexible rule. It all depends upon the particular circumstance of the case.
12. Learned Counsel for petitioner has relied upon the decision of the Supreme Court, in Mohinuddin v. District Magistrate, Beed and Ors., AIR 1987 SC 1977, in which it was laid down that in a Habeas Corpus petition, the proper person to file an affidavit is the District Magistrate who had passed the order of detention as he has to explain his subjective satisfaction and the grounds therefor.
13. The dictum laid down by the Supreme Court in the above case is not absolute in terms. Even in that case, it has been pointed out that if for some good reasons the District Magistrate is not available, the affidavit can be sworn by some responsible Officer like a Secretary or Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat. The Supreme Court itself, therefore, allows the filing of affidavit of an officer other than the detaining authority in certain circumstances.
14. An argument that a counter-affidavit must in all cases be filed by the detaining authority was also rejected by the Supreme Court in Madan Lal Anand v. Union of India and Anr., AIR 1990 SC 176: (1990 Cri LJ 659) which was followed in a later decision, namely, Syed Mohd Faroon v. Union of India and Anr., AIR 1990 SC 1597: (1990 Cri LJ 1622). The ratio of the above two decisions is to the effect that if there were no personal allegations of mala fide or bias by the detenue against the detaining authority in person, the omission to file an affidavit in reply of the detaining authority by itself would be no ground to sustain the allegations of mala fides or non-application of mind.
15. In the latter case, namely, in the case of Syed Farooq Mohammad v. Union of India (Supra), the decision of the Supreme Court in Mohinuddin v. District Magistrate, Beed and Ors. (Supra) upon which reliance has been placed by the learned Counsel for petitioner was considered and a passage therefrom was quoted in para 19 of the report.
16. In State of Punjab and Ors. v. Jagdev Singh Talwandi, AIR 1984 SC 444: (1984 Cri LJ 177), the Supreme Court has observed as under (at p. 184 of Cri. L.J.):--
After reviewing certain other decisions, the court held that the failure to furnish the counter-affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority. In the result, the absence of the affidavit of the District Magistrate was held not to vitiate the order of detention.
The Supreme Court has further observed as under:--
In this case too, there are no allegations of mala fides against the District Magistrate and so his failure to file a counter-affidavit will not vitiate the order of detention. We cannot, however, leave this subject without emphasising once again the importance of the detaining authority filing his own affidavit in cases of the present nature. There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge. Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.
17. Since in the instant case allegations of mala fides or bias have not been made against the District Magistrate Jammu (Mr. Parvez Dewan), the non-filing of the counter affidavit of Mr. Parvez Dewan would not be fatal.
18. Learned Counsel for the petitioner then referred to the grounds of detention which are quoted as under:--
Grounds of detention under J&K; PSA 1978 in respect of Baldev Singh alias Bablu son of Inder Singh r/o originally Rafiabad District Kupwara presently 16 Gupkar Road Srinagar age 20 years.
. . .
You are a Sikh youth of Kashmir Valley You came in contact with the Pak/POK trained activists of JKLF through one of your friend namely Mohd Latif (a Pak trained militant). You met with Zaffar Kashmiri (Dy. Chief of J&KLF; Org) and started working for subversion along with other activists of same Org. You shared the plan for lobbing the hand grenades in Jammu City at Indira Chowk and Bus Stand, which resulted in some casualties. Your activities are highly prejudicial to the security of the State.
In the month of April, 1991, you through your friend Mohd Latif r/o Sonwar Sgr. came in contact with the militants of JKLF namely Parvez Ahmed alias Noor Khan r/o Habbakadal, Sgr. Mohd Maqbool, Irshad r/o Indira Nagar Sgr. Zaffar Kashmiri (Deputy Chief of JKLF), Bilal Ahmed Umar Hayat, Bitta Khan and other 8/10 militants. On the motivation of Zaffar Kashmiri you joined JKLF Organization and started working for the same.
In the month of May, 1991, you along with said Bitta Khan came at Jammu by a truck. Said Bitta Khan was having a bag with him in which some explosive material was lying. You along with said Bitta Khan went to Chhani where you met with Iqbal and Abdul Majid Tailors of JKAP. On next day you came through a Matador to Jammu. You received Rs. 500/- from the said Bitta Khan. You shared the plan of lobbing the hand grenade in Jammu City with said Bitta Khan. On the same day at about 4 pm said Bitta Khan in your presence lobbed the grenades towards Indira Chouk Jammuswar SMGS Hospital. The grenade hit the ground and exploded. You along with said Bitta Khan fled away.
In the month of July, 1991, you were called by said Zaffar Kashmiri and asked to have a trail at Jammu along with the said Parvez Ahmed alias Noor Khan for subversive activities. You were paid Rs. 1200/- by said Zaffar Kashmiri for your subversive activities. On 23-7-1991, you along with said Parvez Ahmed alias Noor Khan came at Jammu by a Bus and Stayed in Karan Hotel near Jewel crossing in Room No. 5. On next day, both of you lobbed the grenades in bus stand premises which resulted in the death of one old woman and injuries to the others. You and your associates fled away from the place of occurrence.
In the month of August, 1991, you again went to Sgr. and met with said Zaffar Kashmiri, who detailed Parvez Ahmed alias Noor Khan along with you to trail at Jammu and open a JKLF wing/unit at Jammu. On 7-8-91, both of you came at Jammu by a Bus. You left said Parvez Ahmed alias Noor Khan at Jammu and yourself went to Chandigarh to see your relatives. After one month stay at Chandigarh and Simla you returned back to Sgr.
On 16-8-91, you were on your way to home from Sonwar Hazar to Gupkar road, you were nabbed by JKAP Police and subsequently were arrested in case FIR No. 254/91 under Section 3/4 TADA, 4/ ESA, 307 RPC P/S City Jammu and are still in custody. In case your release on bail, you will prove a security hazard.
In view of the prevailing situation especially in the Kashmir Valley and your persistent acts of supporting the cause of militants, you have been considered a potential threat and as such your remaining at large is highly prejudicial to the security of the State.
Therefore, you have been detained under the provisions of the J&K; PSA, 1978 to deter you from indulging in such activities prejudicial to the security of the State. Sd/- District Magistrate, Jammu.
and contended that the detaining authority was under a legal and constitutional obligation to disclose the source of information to the petitioner so that he could have made an effective representation against the order of detention to the Government.
19. It will be seen that the allegations made in the order of detention comprise of a number of incidents.
20. Under Article 22(5) of the Constitution of India where a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order is under a constitutional obligation to communicate to the detenu the 'grounds' on which the order has been made and also to afford him the earliest opportunity of making a representation against the order.
21. The scope of the word 'grounds' shall be considered by me a little later, but for the present, it will be enough to say that the word 'grounds' referred to in Article 22(5) does not include the 'source in information' or 'evidence' gathered against the detenu during the course of investigation etc.
22. In Beni Madhob Shaw v. The State of West Bengal, AIR 1973 SC 2455: 1973 Cri LJ 1621, it was laid down that the detaining authority is under no obligation to disclose the source of information to the detenu. A similar view was expressed by the Supreme Court in Har Jas Dev Singh v. State of Punjab and Ors., AIR 1973 SSC 2469: 1973 Cri LJ 1602.
23. In Vakil Singh v. State of Jammu & Kashmir and Anr., AIR 1974 SC 2337: 1975 Cri LJ 7, it was indicated that the detenu was not entitled to be informed of the source of information. In State of Punjab v. Jagdev Singh Talwandi, AIR 1984 SC 444: (1984 Cri LJ 177) it was held that the evidence collected against the detenu corroborating the C.I.D. report was not liable to be disclosed to the petitioner.
24. In view of the above Supreme Court decisions, it has to be held that the contention raised by learned Counsel for petitioner that the petitioner was entitled to be declosed the source of information is without merit.
25. Learned Counsel for the petitioner then contended that except furnishing the grounds of detention, contained in Annexure-P2 to the petition, no other document or material was furnished to the petitioner. It is contended that at least the documents on the basis of which the detaining authority had felt satisfied that in order to prevent the petitioner form carrying on activities prejudicial to the security of State an order under the Act was necessary, should have been furnished to the petitioner as a part of the grounds of detention. In any case, it is further contended, the copies of the documents referred to and relied upon in the grounds of detention should have been furnished to the petitioner so that he could have effectively exercised his constitutional right of making a representation against the impugned order of detention.
26. It is also contended that after release on bail by orders dated March 16, 1992 and March 28, 1992, the petitioner was all long available to the authorities as he was constantly reporting to the Special Court in the Central Jail, Jammu constituted under the TADA(P) Act, 1987, in compliance of the conditions imposed in the bail order, but the order of detention passed by the Dist. Magistrate, Jammu on April 7, 1992 was not served upon him till June 26, 1992 and, therefore, the delay in the execution of the order will have the effect of vitiating the order as there did not appear to be any immediate necessity of detaining the petitioner under the Act or else the authorities would have executed the order immediately on its being passed by the District Magistrate, Jammu 27, Article 22(5) of the Constitution provides as under:--
(5) 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 the order has been made and shall afford him the earliest opportunity of making a representation against the order.
The true meaning and significance of clause(5) of Article 22, quoted above, was considered by the Supreme Court in Khudiram Das v. The State of West Bengal and Ors., AIR 1975 SC 550: (1975 Cri. LJ 446), which decision was followed by the Supreme Court in Ichho Devi Choraria v. Union of India, AIR 1980 SC 1983 and again in the case of State of Punjab v. Jagdev Singh Talwandi, AIR 1984 SC 444:(1984 Cri LJ 177), in which it was laid down as under:-- (at page 180, of Cri LJ).
12. This Article has come up for consideration before this Court in a large number of cases. One of the earliest judgments of this Court on the interpretation of this Article is reported in Dr. Ramakrishna Bhardwaj v. State of Delhi, 1953 SCR 708: AIR 1953 SC 378: (1953 Cri LJ 1241), in which Patanjali Sastri C.J. observed that under Article 22(5) of the Constitution, the detenu has the right to be furnished with particulars of the grounds of his detention, 'sufficient to enable him to make a representation which, on being considered, may give relief to him.
13. Khudiram Das v. State of West Bengal, (1975) 2 SCR 832 (838, 840): AIR 1975 SC 550: (1975 Cri LJ 446 at P. 555), is a judgment of a four judge Bench of this Court in a case which arose under the Maintenance of Internal Security Act, 1971. One of us, Bhagwati, J who spoke for the Court, surveyed the decisions bearing on the question of the obligation of the detaining authority and explained the nature of that obligation thus:
The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Article 22(5) and Section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest. This has always been the view consistently taken by this Court in a series of decisions. 14. In Mohamad Yousuf Rather v. State of Jammu & Kashmir, (1980) 1 SCR 258, 268, 269: (AIR 1979 SC 1925 at p. 1931), Chinnappa Reddy, J., in a concurring judgment, dealt with the implications of Article 22(5) of the Constitution thus:
The extent and the content of Article 22(5) have been the subject-matter of repealed pronouncements by this Court (vide State of Bombay v. Atmaram, 1951 SCR 167: (AIR 1951 SC 157): (1951 (52) Cri LJ 373); Dr. Ramkrishna Bhardwaj v. State of Delhi (AIR 1953 SC 378): (1953 Cri LJ 1241); Shibanlal Sexena v. State of UP, 1954 SCR 418: (AIR 1954 SC 179):(1954 Cri LJ 456); Dwarkadas Bhatia v. State of Jammu & Kashmir, 1956 SCR 948: (AIR 1957 SC 164): (1957 Cri LJ 316). The interpretation of Article 22(5), consistently adopted by this Court, is perhaps, one of the outstanding contributions of the court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22(5) of the Constitution:
(1) To be informed as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him.' In Khudiram Das v. State of West Bengal (AIR 1975 SC 550), it was observed that these two safeguards 'are the barest minimum which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.
28. In Ichho Devi Choraria v. Union of India (supra) it has laid down that in case of a writ of Habeas Corpus, the practice evolved by the court is not to follow the strict rules of a pleading nor place undue emphasis on the question as to on whom the burden of proof lies. It was also held that when a petition for Habeas Corpus is entertained and a rule is issued, it becomes incumbent upon the detaining authority to satisfy the court that the detention of the petitioner was legal and in conformity with the mandatory provisions of law. The Supreme Court observed that it would be no argument on the part of the detaining authority to say that the particular ground has not been taken in the petition. Once the rule is issued, it is the bounden duty of the court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the citizen has not been deprived of his personal liberty otherwise than in accordance with law. The Supreme Court further observed that copies of the documents, statements and other materials, relied upon in the grounds of detention form a part of such grounds and they are to be supplied to the detenu.
29. In view of the, above decisions of the Supreme Court and in view of the fact that under Article 22(5) of the Constitution, petitioner has also a right of making a representation against the order of detention, the words 'grounds' referred to in that Article not only include the grounds on the basis of which order of detention is passed, but also the material and the documents referred to in the order of detention, copies whereof have also to be supplied to the detenu as part of the order.
30. In the grounds of detention, reliance has been placed upon FIR No. 254/91 under Sections 3/4 TADA, 4/5 ESA, 307 RPC of Police station City Jammu. But a copy of this document has admittedly not been furnished to the petitioner as a part of the grounds of detention. It is not stated anywhere in any of the counter-affidavits filed on behalf of the opposite party that copy of this FIR was at any time earlier given to the petitioner. This infirmity goes to the root of the matter and the impugned order of detention becomes bad for not supplying a copy of the documents relied upon by the detaining authority in the grounds of detention to the petitioner, resulting in complete denial of being given an opportunity of making an effective representation against the order of detention. The protection available to the petitioner under Article 22(5) was thus violated and the detention order cannot be sustained.
31. The impugned order of detention was passed on April 7, 1992 but was executed against the petitioner on June 26, 1992. It has already come on record that petitioner after being granted bail by the Special Court (TADA) was available all along at Jammu as he had been reporting to the court after every fortnight in compliance of the directions contained in the order by which bail was granted to the petitioner on March 16, 1992.
32. On the basis of these facts, it has been contended by learned Counsel for petitioner that non-execution of the order of detention against the petitioner for more than two months is clear by indicative of the fact that the detention of petitioner under the Act was not an immediate necessity.
33. The opposite parties have filed three Counter affidavits, including the affidavits of District Magistrate Jammu, SHO of police station City Jammu and Asstt. Superintendent of Central Jail, Jammu. But in none of the affidavits any explanation has been indicated as to why the order of detention was not executed at any time earlier or immediately after it was passed and why the order of detention was not executed for more than two months.
34. In T.A. Abdul Rahman v. State of Kerala and Ors., AIR 1990 SC 225: (1990 Cri LJ 578) it was observed as under:--at page 582 of Cri LJ.. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.
35. For the reasons stated above, I am clearly of the opinion that the continued detention of the petitioner stands vitiated on account of the above legal and constitutional infirmities.
36. This petition is accordingly allowed and the impugned order of detention dated April 7, 1992 passed by the District Magistrate, Jammu along with grounds of detention, contained in Annexure-P2, is quashed with the direction that the petitioner/detenu shall be set at liberty forthwith in case his detention is not required in any other case.