Decided on January 27,1982

STATE OF JANDK Respondents


- (1.) BY this Habeas Corpus petition, the petitioner seeks to challenge his preventive detention u/s 8 of the Jammu & Kashmir Public Safety Act, 1978 hereinafter the Act ordered by District Magistrate, Jammu, vide his order dated 8 6 -1981, with a view to preventing the petitioner from acting in any manner prejudicial to the security of the State. The grounds of detention which were served upon him on 17 -6 -1981 read as under : - "1. After 1947 you settled on own side and started hotel business at Jewal Chowk Jammu Where you used to sell illicit liquor to customers. During the year 1964 -65 you started transborder smuggling with pak nationals. One of them was Shab Din R/o Pak Pak agent 2. In December, 1979 Shab Din came this side and took you to Pakistan where you were introduced to Sub Malik of Pak .F. I. U. and thereafter to Major Khan of F. I. U. Unit your photograph as well as finger prints were obtained and you were persuaded to introduce your son Joginder Singh a serving soldier and to give details of Army Deployment at Satwari, Bahu Fort, Miransahib and Suchetgarh Sector. You were paid Rs. 200/ -IC and were sent back via Harnawli post. 3. In the end of February 1980 you crossed over to Pak and met Sub Malik at Harnawali post and handed over him two written letters of your son Joginder Singh and information collected by you regarding 152 Bde Miransahib, description of new Tawi bridge and Nagrota Bridge. Major Khan directed you to get the supply register of Army from Udhampur and the datails of Army deployment at Muthi Domana and Lalada -bag. You were paid Rs. 100/ -IC and sent back to your own. 4. In April 1980 you took along with you one Raj Karan S/o Amar Nath R/o Sama Chak acrossed the border via sai and got him introduced to Major Khan. You also gave the details reg. the Army information collected from Muthi Domana and Lala da -Bag for which you were paid Rs. 100/ -IC each. 5. In June 1980 you alongwith Raj Karan again acrossed the border and handed over the Railway Time Table to Pak FIU Officer and also the information regarding the Battalion of your son Joginder Singh. Both of you were sent back via Harna wali post."
(2.) THE challenge has been thrown upon the grounds. firstly, that the petitioner having been arrested on 8 -6 -1981, the grounds were served upon him on 17 -6 -1981 i. e. more than five days after his detention which constituted a violation of Article 22 5 of the Constitution as also of Section 10 1 of the Act; secondly, that there was non -compliance with Article 22 5 inasmuch as the petitioner being conversant with Hindi only the grounds of detention were served upon him in Urdu, which prevented him from making an effective representation against his detention ; thirdly, that no copies of the documents relied upon by the detaining authority for ordering his detention were supplied to the petitioner in terms of Article 225 ; fourthly, that almost all the grounds of detention were either vague or irrelevant ; fifthly, that there has been inordinate delay on the part of the District Magistrate in passing the detention order and on the part of the Government in disposing of his representation ; and sixthly, that the detention was malafide, being clearly traceable to the past enmity between the petitioner and Bhagat Harichand Dy. S. P. CID. The order of detention was no doubt issued by the District Magistrate on 8 -6 -1981, but it could not be served upon the petitioner before 15 -5 1981. This is borne out from the affidavit of Shri Chaman Lal Dogra, Inspector CID Jammu, who had arrested the petitioner in execution of the aforesaid warrant on 15 -6 -1981. The grounds of detention having been admittedly served upon him in Central Jail on 17 -6 -1981, i. e. within two days from his detention, there could be no violation of either Section 13 1 of the Act or Article 22 5 of the Constitution.
(3.) THE petitioner is a resident of the State of Jammu and Kashmir and is a Rajput by caste. There can thus no manner of doubt that he is conversant with Dogri, a dialect almost universally spoken in Jammu Province of the State of Jammu and Kashmir by its non -Muslim residents. The grounds of detention were explained to him, as is borne out from his affidavit by Th. Milkhi Singh Assistant Superintendent, Central Jail, Jammu, in two languages, namely, Urdu and Dogri, which the petitioner fully understood. Not only that a copy of the grounds of detention was also supplied to him in Urdu. There has been thus sufficient compliance with Article 22 5. The plea that he can understand only Hindi is clearly an after -thought which has been for the first time taken by the petitioner in his amended petition, in his initial petition he has admitted that he is In punjabi speaking person and punjabi, it is common knowledge is almost similar to Dogri. It is, therefore, established that the grounds of detention were fully explained to the petitioner in the language he clearly understood. 3 Admittedly no copy of any document was supplied to the petitioner alongwith the grounds of detention. Mr Sabiq has contended that even if there were no other documents, the District Magistrate ought to have supplied to the petitioner at least the copy of the report of the Superintendent of Police CID, upon which the detention order was based. Failure to do so, argued the leaaned counsel constituted a gross violation of Art. 22 5. For this he has relied upon the authority of Smt. Icchu Devi Choraria Vs. Union of India and others, A I R 1980 SC 1983, Smt. Shalini Son? Vs. Union of India, AIR 1981 SC 431 and S. Gurdip Singh Vs. Union of India and others. AIR 1981 SC 362. In Icchu Devis case supra, their lordships while explaining the amplitude of the expression "grounds of detention" occurring in Art. 22 5 have observed : "Now it is obvious that when clause 5 of Art 22 and sub -section 3 of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenue within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenue. If there are any document, statement or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not therefore, be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Cl. 6 of Art 22 in order to constitute compliance with Clause 5 of Art, 22 and Section 3, sub -section 3 of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenue, at the earliest opportunity to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention..." To the same effect are the following observations made in Shalini Sonis case supra "...From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may alsobe looked at from the point of view of the second face of Art. 22 5. An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual materials which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercia of futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Art 22 5 do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The grounds" must be self -sufficient and self -explanatory. In our view copies of documents to which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds" These two decisions were relied upon in S. Gurdeep Singhs case supra and it was held that failure to supply copies of the documents which are relied upon to support the detention order constituted a violation of Art. 22 5 vitiating the detention.;

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