1. This writ petition under Article 226 of the Constitution of India has been filed challenging the detention of petitioner's cousin namely Shri Salte Ch.Momin under the provisions of Meghalaya Preventive Detention Act, 1995 ( hereinafter in short 'Act of 1995'). In this way the petitioner is virtually seeking a writ of Habeas Corpus.
2. Heard Mr. K C Gautam, learned counsel for the petitioner and Mr. K Khan, learned Additional Public Prosecutor, for the respondents. During the course of hearing the learned Additional Public Prosecutor also produced the relevant file for our perusal.
3. The detenue was taken in custody under the provisions of the preventive detention law on the basis of order dated 29.6.2010 issued by the District Magistrate, East Garo Hills District, Williamnagar in exercise of powers conferred U/S 3(1) of the 1995 Act. Simultaneously the detenue was supplied with grounds of arrest and on receipt of the opinion of the Advisory Board the detention was confirmed by the Govt. of Meghalaya vide order dated 26.8.2010. These orders are challenged in this writ petition.
4. The petitioner has challenged detention of his cousin on the ground that the detenue was not furnished the grounds of detention in his own language and as such detenue could not submit effective representation. Secondly it was contended that the detaining authority did not supply the materials which were the basis for issuing the detention order. In support of the 2nd ground, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Thahira Haris -Vs- Government of Karnataka (AIR 2009 SC 2184) and also another judgment of the Apex Court rendered in the case of Haridas Amarchand Shah of Bombay -Vs- K.L.Verma, reported in (1989) 1 SCC 250.
5. Per contra, Mr. K Khan, learned Additional public Prosecutor submitted that the grounds of detention were personally explained to the detenue in Garo Language and this process was recorded by way of videography and as such it cannot be said that the detenue was not given any opportunity to submit any effective representation. With regard to supply of materials and documents, the learned Additional Public Prosecutor submitted that it is not sine quanon, more so, when the detenue had already submitted a detailed and effective representation. In support of this submission the learned counsel also relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Lawrence Joachim Joseph D'Souza -vs- The State of Bombay (AIR 1956 S.C. 531).
6. After going through the relevant file pertaining to detention of petitioner's cousin, we have noticed that the detenue had submitted representation on 6.7.2010 and the said representation runs in 10 pages and that too in English Language. Hence the contention of the learned counsel for the petitioner that detention order is vitiated for non-supply of grounds of detention in a language known and understood by the detenue can not be accepted.
7. With regard to supply of documents and materials, the admitted fact is that grounds of detention only contains the gist of three FIRs. The other admitted fact is that even the copies of the FIRs were not supplied to the detenue. It is also true that before submitting the representation the detenue had obtained certified copy of the FIRs.
8. Apparently the FIRs were registered for the offences of kidnapping of persons by the militants and serving demand notices. Apparently the informants did not name any person as to who had kidnapped the person or who had served demand notices. The grounds of detention as well as the file produced before us also indicate one case of demand of ransom was registered as early as in the month of February, 2010 and other two cases were registered in the month of April, 2010. Nearly after four months of the investigation the Superintendent of Police, East Garo Hills District, Williamnagar submitted report to the District Magistrate on 14.6.2010 that the accused Shri Salte Ch.Momin was a member of militant organization (Garo National Liberation Army) and he was indulged in unlawful activities like extortion, dacoity, kidnapping etc. and as such his preventive detention is necessary to curtail criminal activities. Along with letter dated 14.6.2010 the Superintendent of Police submitted pen profile and other details to make out a case of preventive detention of the said accused. However, the aforesaid report was also not made a part of the grounds of detention.
9. In the case of Thahira Haris (supra), after referring to a series of judgments, the Hon'ble Supreme Court has held that Article 22(5) of the Constitution provides a right to the detenue to be supplied copies of the documents, statements and other materials relied upon by the detaining authority. Their Lordships have further observed that predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make an effective and meaningful representation against his detention.
In the aforesaid judgment the Hon'ble Supreme Court also relied upon the Constitution Bench Judgment of Dr.Ram Krishan Bhardwaj v. The State of Delhi (AIR 1953 SC 318).Relevant observations are of the said judgment reproduced below: " 10. More than half a century ago, the Constitution Bench of this Court has interpreted Article 22(5) of the Constitution in Dr. Ram Krishan Bhardwaj v. The State of Delhi and ors., 1953 SCR 708, observed as under:
"....Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under Article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to en able him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect of each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of Article 22. That not having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith."
10. In the case of Sophia Gulam Mohd. Bham v. State of Maharashtra, reported in (1999) 6 SCC 593 the Hon'ble Supreme Court has taken an identical view with regard to supply of grounds and materials. In this judgment the Apex Court has clarified that the word 'grounds' used in clause (5) of Article 22 does not mean only narration or conclusions of facts, but also of materials on which those facts or conclusions which constitute "grounds" are based . Their Lordships have further observed that "basic facts" are different from supplementary facts or further particulars.
11. The Constitution Bench Judgment in the case of Lawrence Joachim Joseph D'Souza (supra), relied upon by the learned Additional Public Prosecutor appears to be based on detention of a person on vague grounds and without particulars of grounds. Referring to Article 22(5) & (6), their Lordships have observed that necessity for such a communication would arise only if the detenue, feeling the grounds to be vague, asked for particulars.
12. In the case before us the petitioner is challenging the detention order on the ground of not supplying materials which were made the basis for issuing the detention order. We have already stated earlier that over and above the gist of three FIRs, the Superintendent of Police had also furnished other materials to the District Magistrate and those materials were also not supplied to the detenue. Since the report of the Superintendent of Police was neither reflected in the grounds of detention nor the same was in the knowledge of the detenue there was no question of demanding a copy of the same. In our considered view it was the statutory duty of the detaining authority to supply all the relevant documents to fulfill the obligation enshrined under Article 22(5).
13. Although the writ petitioner did not challenge the subjective satisfaction of the District Magistrate, however, after going through the detention order dated 29.6.2010, we have noticed that District Magistrate has opined that the possibility of releasing the accused on bail in police cases cannot be ruled out. However, neither there is any narration in the detention order that any bail application was filed by the detenue nor any copy of the bail application was found in the relevant file, produced before us. Besides this in one of the paragraphs of the detention order the District Magistrate has stated that :
" I am satisfied that if Sri Salte Ch.Momin is allowed to remain at large, he would act in the manner prejudicial to the security of the state " .
14. Since the detenue was also in judicial custody and no bail application was filed, we do not see any basis for the District Magistrate to take a view that the accused was about to be released shortly. In this way, the subjective satisfaction of the District Magistrate appears to be ifse -dixit and without any basis.
15. For the foregoing reasons, the impugned detention orders are hereby set aside. The respondents are directed to release detenue namely Shri Salte Ch.Momin forthwith, if he is not wanted in any other case.
16. In the result, writ petition stands allowed. No costs.