UT of J&K and another vs J U D G E M E N T

Judgment

1. Through the medium of instant petition quashment of det ention order bearing No. DMB/PSA/03 of 2021 dated 18.10.2021, (h ereinafter for short the ‘impugned order’) passed against the detenu, namely, Mehraj ud Din Kumar, by respondent no.2-District Magistrate, Bu dgam (for brevity detaining authority), under and in t erms of provisions of t h e Jammu & Kashmir Public Safety Act, 1978 (for short t he ‘Act ’). Th e

detention order dated 18.10.2021 is challenged by the petitioner through the medium of instant petition and is seeking quashment of t h e same on the grounds urged in the writ petition.

2. It is being stated in the petition that t he det enu is a law abidin g an d peace-loving citizen and has never been involved in any subversive activity prejudicial to the Security of the UT/ Cou ntry. The det enu is stated to have been arrested on 17.10.2021, after bein g su mmoned t o Police Station, Chara-i-Sharief, and was implicated falsely in case FIR Nos. 83/2020 and 56/2020 registered at Police Station, Chara-i-Sharief, in which bail, sought for, has been granted by the competent court of law, which fact is not mentioned in the grounds of det ention, t hereby demonstrating non-application of mind on the part of detaining authority and as a corollary thereof vitiating the detention order. 2 WP (Crl) No.227/2021

3. It is being further urged in the grounds t hat t he det enu h ad n ot been provided copies of the relevant material, like copy of dossier, copy of FIRs, statements recorded under Section 161, 164-A Cr.P.C., referred to in the grounds of detention, material, if an y, collected du ring t he course of investigation, thus, depriving him to file an effective representation against his detention. The said failure is st at ed t o h ave infringed the constitutional and statutory rights of the detenu guaranteed under Article 22 (5) of the Constitution of India and Section 13 of J&K Public Safety Act.

4. On the other hand, respondents, in their reply affidavit filed, resist an d controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preven tive and not punitive in nature, while it is being adm itted by respon dents that detenu was detained pursuant to impugned order. It is being st ated that all statutory requirements and constitutional guarantees h ave h ad been fulfilled and complied with while detaining the detenu.

5. It is being next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that t he contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order. Respondents in the process are stated to have complied with all statutory, constitutional provisions, and followed all requisite formalities without violating any of them. Heard learned counsel for the parties, perused the record and considered the matter.

6. Before adverting to the controversy involved in the petition, it would be appropriate and advantageous to refer t o t he ju dgement of t h e Apex Court passed in case titled as ‘Rekha v. State of Tamil Nadu report ed in 2011 (5) SCC 244’ being relevant and germane h erein, wh erein at paragraphs 29, 33 & 35 it has been observed and laid down as under: “29. Preventive detention is, by nature, repugnant to democratic ideas and an apathema to the rule of law. No such 3 WP (Crl) No.227/2021 law exists in the USA and in England (except during wartime). Since, however, Article 22(3)(b) of Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preven tive detention within very narrow limits, otherwise we will be taking away the great right to liberty guarantee by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follow, therefore, that if t h e ordinary law of the land (the Penal Code and other penal statues) can deal with a situation, recou rse t o a preven tive detention law will be illegal.” “33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case that even if a person is liable to be tried in a criminal court for commission of a crim in al offence, or is actually being so tried, that does not debar t h e authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Article 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is on ly an exception to Article 21 and it is not itself a fu ndamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. Th e righ t t o liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placin g h is defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive det ention law be taken recourse to” “35. It must be remembered that in cases of preventive detention no offence is proved and the justification of su ch detention is suspicion or reasonable probability, an d t here is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion” (vide State of Maharashtra v. Bhaurao Punjabrao Gawande, SCC para 63). Th e det aining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the det enue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest . To prevent m isuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion mandatory and vital.” A reference to the judgement of the Apex cou rt passed in case titled as Abdul Wahab Sheikh v. B. K. Jha reported in 1987 (2) SCC 4 WP (Crl) No.227/2021 22 would also be relevant wherein at paragraph 5, following has been noticed and observed as under: “… We only desire to add that in a Habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution an d t he st atute h ave been complied with before the date of hearing an d t herefore, t he detention should be upheld. The procedural requirements are the only safeguard available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirement are therefore, to be strictly complied with if any value is t o be at t ached t o the liberty of the subject and the constitutional right guaranteed to him in that regard.”

7. Coming to the ground of challenge noted in the preceding paragraphs, it is revealed that there is no denial to the fact by t h e respondents in the reply affidavit that the detenu stands released in the FIRs. Even the order of detention, grounds of detention, so much so t he record does not anywhere reveal or suggest that the detaining authority was aware about the said fact.

8. The law enjoins upon the detaining authority to be alive to all the facts and circumstances of the case and on the application of m in d t o all those facts and circumstances, t he detaining au thority h as t o draw subjective satisfaction that the detention of the detenu becomes imperative. In case all the facts are not brou ght t o t he n otice of t h e detaining authority or that the detaining authority is n ot aware of all the facts and circumstances and without considering the same, it derives subjective satisfaction to detain a person, the same would amounts to non-application of mind on its part. A reference here to the judgment of t h e Apex Cou rt passed in case titled as ‘Vijay Narain Singh v. State of Bihar and Others, reported in 1984 (3) SC 14’ being relevant and germane would be advantageous wherein following has been observed and noticed: “It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care sh ould be taken that the liberty of a person is not jeopardized u nless his case falls squarely within the four corners of t h e relevant law. The law of preventive detention should not be used 5 WP (Crl) No.227/2021 merely to clip the wings of an accused who is in volved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a com pet ent criminal court, great caution should be exercised in scrutinizing the validity of an order of preven tive detention which is based on the very same charge which is to be tried by the criminal court.” The failure on the part of the detaining authority t o sh ow awareness with regard to the bail granted to the detenu in the FIRs relied upon by it per se amounts to non-application of mind on its part, vit iating t he order of detention.

9. Another contention urged by learned counsel for petitioner as regards the submission of a representation by the wife of t h e det enu, as spelt out in ground (x) of the writ petition, is con cerned, t he respondents have not specifically denied the same, therefore, it can safely be inferred that the said representation has not been considered, thus resulting into violation of the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgement of the Apex Court passed in case titled as ‘Rahmatullah v. State of Bihar and others reported in 1979 (4) SCC 559’, would be relevant and germane here wherein at paragraph 4, following has been observed: “4. The normal rule of law is that wh en a person commits an offence or a number of offences, he should be prosecu ted an d punished in accordance with the normal appropriate crim inal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Art icle 22 reads: 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. This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds 6 WP (Crl) No.227/2021 of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority wit hout an y unreasonable delay, as it involves the libert y of a cit izen guaranteed by Article 19 of the Constitution. The non- consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Su b- Article (5) of Article 22 of the Constitution.” It is also settled law that there should not be supine indifference, slackness or callous attitude in considering the representation and any unexplained delay in disposal of a representation would be breach of the Constitutional imperative and it would render the continued detention impermissible and illegal, is what has been said and held by the Apex Court in K. M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476, followed in Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417 and iterated in Ummu Sabeena v. State of Kerala, (2011) 10 SCC

781. In the latest judgement passed the Hon’ble Apex Court in case titled “The State of Manipur & others v. Buyamayum Abdul Hanan” reported as 2022 SCC Online SC 1455, delivered on 19 th of October, 2022 at paragraph 24 following has been held: “24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the High Court in setting aside the order of preventive detention under the impugned judgment.”

10. Furthermore, in the recent judgement of the Hon’ble Apex Court in case titled “Pramod Singla v. Union of India and others” delivered on 10th of April, 2023 on the conclusion paragraph 44 of the judgement has held: 7 WP (Crl) No.227/2021 “…As has been mentioned above, preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the State. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government. Every procedural rigidity must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.” In view of the aforesaid position obtaining in the matter , the other grounds urged in the petition need not to be dealt with and same essentially pale into insignificance.

11. Viewed thus, in the context of what has been observed, an alyzed an d considered in the preceding paragraphs, instant petition is allowed an d as a consequence whereof, the impugned order of detention bearing No. DMB/PSA/03 of 2021 dated 18.10.2021 is quashed, with a direction t o the respondents including the Jail Superintendent concerned to release the detenu forthwith from preventive custody u nless requ ired in an y other case.

12. Disposed of. No orders as to costs.

13. The record produced by counsel for the respondents for peru sal of t h e Court is returned to him in the open Court. (Javed Iqbal Wani) Judge Srinagar 27.04.2023 TASADUQ SAB: Whether approved for reporting? Yes / No.