HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 28.12.2021
Pronounced on : 30.12.2021
WP(Crl) No.65/2021
Jatinder Singh alias Shallu .....Petitioner
Through: Mr. S.S. Ahmed, Advocate
versus
Union Territory of J&K & others .....Respondent(s)
Through: Mr. Ravinder Gupta, AAG
Ms Palvi Sharma, Advocate
Mr. Raja Mohit Bucha, Advocate
Mr. Rajeshwar Singh, Advocate
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. Impugned in this petition is Order No.02/PSA of 2021 dated 11.06.2021 issued by the District Magistrate, Samba, respondent No.2 herein, whereby the petitioner has been detained under the J&K Public Safety Act, 1978.
2. The case as set up by the petitioner-detenu is that respondent No.2 while slapping preventive detention of detenu has not adhered to the constitutional safeguards available to him under the Constitution of India as well as the J&K Public Safety Act, 1978. It is contended that the petitioner has been implicated in false and frivolous FIRs and that the detaining authority has issued the detention order without proper application of mind. It is also averred that the respondents did not explain him the grounds of detention as also the material documents relied upon by them in the language which the petitioner-detenu understands. It is the specific case of petitioner-detenu that out of seven FIRs, 2 WP(Crl) 65/2021 he has already been acquitted in two of them, but the respondents have suppressed this fact in the grounds of detention as well as in the order of detention.
3. Objections have been filed on behalf of District Magistrate, Samba averring therein that after completion of all legal formalities the petitioner- detenu has rightly been detained under the Public Safety Act for the maintenance of public order. Further, it is averred that petitioner-detenu was properly explained the grounds of detention as well as detention order in the language which he properly understood against proper signatures/thumb impression.
4. Heard learned counsel appearing for the parties, considered their rival contentions and also perused the photocopies of the record.
5. Mainly the petitioner-detenu has assailed the impugned detention order on two counts - (i) that the respondents did not explain him the grounds of detention as also the material documents relied upon by them in the language which the petitioner-detenu understands, and, (ii) that the detaining authority has issued the detention order without proper application of mind.
6. A perusal of the photocopies of the record reveals that in terms of Execution Report dated 26.06.2021 and receipt of grounds of detention, the contents of detention warrant, grounds of detention, dossier, FIRs and contents of other documents were read over to the detenu in English and explained him in Urdu and Hindi languages, which detenu understood fully in token of which the signatures of detenu had been obtained on the execution report/receipt of grounds of detention. In paragraph-12 of the petition, the petitioner-detenu has 3 WP(Crl) 65/2021 specifically averred that "the entire material accompanied with the dossier was not provided in the language understood by the petitioner, i.e., Dogri/Hindi; meaning thereby the petitioner-detenu has himself admitted that he is well versed with the Hindi language. In the execution report/receipt of grounds of detention, also signed and endorsed by the petitioner, it has been specifically mentioned that apart from Urdu language, petitioner-detenu was also explained the relevant documents in Hindi language. Therefore, the contention of petitioner-detenu that the respondents did not explain him the grounds of detention as also the material documents relied upon by them in the language which he understands, is hereby rejected.
7. Now coming to the second contention that the detaining authority has issued the detention order without proper application of mind.
8. Although the District Magistrate, Samba while slapping the Public Safety Act against the petitioner has specifically mentioned in the grounds of detention that seven FIRs have been registered against the petitioner-detenu in which he is facing judicial scrutiny in the court of law, yet, the fact of the matter is that he has already been acquitted in FIR No.123/2005 under Sections 452/427 RPC, 4/25 Arms Act registered at Police Station Vijaypur and FIR No.72/2008 under Sections 302/201/34 IPC registered at Police Station Dhalli (Shimla). Even, in paragraph-3 of the objections filed by District Magistrate, Samba, it has been specifically averred that record clearly shows that the petitioner-detenu has been acquitted in two cases. Thus, it seems the grounds of detention/dossier have been issued without proper application of mind; therefore, the detention of detenu and the satisfaction recorded by the detaining authority suffers from non-application of mind on the part of respondent No.2 4 WP(Crl) 65/2021 and, hence, it is vitiated, which renders the detention of detenu illegal. The detaining authority has not shown his awareness in the grounds of detention about the present status of 2005 and 2008 FIRs.
9. Further, the petitioner-detenu has specifically averred in the petition that he made representations on 13.07.2021 and 06.08.2021 against the impugned detention order before respondent No.1 and the Chairman, State Advisory Board, but till date the same have not been decided. In paragraph-9 of the objections filed by District Magistrate, Samba, it has been admitted that the petitioner-detenu had made representations before the concerned quarters. Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenu to be afforded earliest opportunity of making representation against the order of detention. Since respondent No.1 and Chairman, State Advisory Board have failed to decide the representation of petitioner-detenu for the last five months, as such the same renders the detention of petitioner illegal.
10. Therefore, in view of what has been discussed above, I deem it proper to allow the habeas corpus petition and quash Order No.02/PSA of 2021 dated 11.06.2021 issued by the District Magistrate, Samba, respondent No.2 herein. Ordered accordingly. Respondent No.3 is directed to release the petitioner- detenu forthwith, if he is not otherwise required in any other case.
11. Registry to hand over the record against proper receipt.
Jammu: (Tashi Rabstan)
30.12.2021 Judge
(Anil Sanhotra)
Whether the order is reportable ? Yes
Whether the order is speaking ? Yes
ANIL SANHOTRA
2021.12.31 12:49
I attest to the accuracy and
integrity of this document