Jammu & Kashmir High Court
Reserved On 06.12.202 vs Union Territory Of Jammu And ... on 9 December, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No.32/2021
CrlM Nos.2141/2021 &
965/2021
Reserved on 06.12.2021
Pronounced on 09.12.2021
Ali Hayder
...Petitioner(s)
Through:- Mr. Sheikh Altaf Hussain, Advocate.
Versus
Union Territory of Jammu and Kashmir
and others
...Respondent(s)
Through:- Mr. Bhanu Jasrotia, GA.
Coram :- HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. The petitioner, namely, Ali Hayder son of Abdul Aziz resident of
Village Gundha Tehsil Khawas, District Rajouri (hereinafter referred to as
„detenue‟) has filed this habeas corpus petition through his copusin,
questioning the detention order bearing No.DMR/INDEX-02 of 2021 dated
20.05.2021 slapped on him by respondent No.2 i.e., the District Magistrate,
Rajouri, under Section 8 of the J&K Public Safety Act, 1978.
2. It is contended in the petition that the detenue has never committed
any criminal/anti-national offence however he along with three other persons
has been implicated in a false and frivolous case registered with Police Station
Budhal, Rajouri.
3. It is submitted by learned counsel for the petitioner/detenue that
there was no danger to public order especially when the petitioner was already
in custody in FIR No.44/2021 registered with Police Station Budhal for the
commission of offence punishable under Sections 295-A/429 IPC wherein no
bail has been granted by the competent court of law till date and as such, no
situation arise for slapping the detention order on the detenue. It is further
submitted that the material relied upon by the detaining authority i.e., the
dossier, the copy of FIR No.44/2021, the grounds of detention and the
confidential reports submitted by District Special Branch, Rajouri, has never
been supplied to the detenue or his brother. It is submitted that the detenue has
made a representation on 31.05.2021 in absence of supply of above material,
but the same has not been decided by the respondents till date.
4. Reply affidavit has been filed by respondents, objecting the
petition.
5. Heard learned counsel for parties, considered their submissions and
perused the record produced by learned counsel for the respondents.
6. A bare perusal of the detention order reveals that the detenue has
been placed under detention vide detention order No. No.DMR/INDEX-02 of
2021 dated 20.05.2021, passed by District Magistrate, Rajouri, under Section 8
of Jammu and Kashmir Public Safety Act, 1978 (for short "Act of 1978") on
the ground to maintain proper order, harmony and to prevent violence of any
kind in the district and also to prevent the detenue from acting in any manner
which is highly prejudicial to the maintenance of public order.
7. A bare perusal of record reveals that one Javed Manhas, Sub
Inspector, No.876430/EXJ, Police Station Rajouri has taken the custody of
deteune on 22.05.2021 and as such, executed the execution report to the
detenue and handed over his custody to the Deputy Superintendent, Central Jail
Kotbhalwal, Jammu on the same date. The execution report further reveals that
the contents of detention warrant along with ground of detention was read over
to the detenue in English language and thereafter explained him in Pahari
Language. It is contended that total eight number of leaves were handed over to
detenue which include copy of detention warrant (03 leaves), grounds of
detention (04 leaves) and notice of detention (01 leaf) against proper receipt.
8. On going through the record so produced it comes to the fore that
the copy of dossier, copy of FIR No.44/2021 and the confidential reports
submitted by District Special Branch, Rajouri bearing DD Report No.20 dated
14.05.2021, DD Report No.19 dated 17.05.2021 and DD Report No.10 dated
18.05.2021 of Police Post Khawas, have not been supplied to the detenue.
9. The failure on part of detaining authority to supply material relied at
the time of making detention order against the detenue, renders detention order
illegal and unsustainable. While holding so, support is drawn from law laid
down in ThahiraHaris Etc. Etc.v. Government of Karnataka (AIR 2009 SC
2184) Union of India v. Ranu Bhandari (2008, Cr. L. J.
4567);DhannajoyDass v. District Magistrate (AIR, 1982 SC 1315);Sofia
Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR, 1999, SC
3051); and Syed AasiyaIndrabi v. State of J&K &ors(2009 (I) S.L.J 219);
and Union of India v. Ranu Bhandari (2008 Cr. L. J. 4567.;
10. Learned counsel for the detenue has vehemently argued that when
the material relied upon by the detaining authority on the basis of which the
detention order is passed, has not been supplied to the detenue, then the order
of detention is liable to be quashed as the detenue could not make an effective
representation to the respondents against his detention.
11. Article 22(5) of the Constitution provides a precious and valuable
right to a person detained under preventive detention law - J&K Public Safety
Act 1978, to make a representation against the detention. The detenu is held in
custody on a mere suspicion that his apprehended activities may be prejudicial
to the maintenance of public order or security of the State. Article 22(5),
Constitution of India and Section 13 of the Act, thus makes it obligatory for
Detaining Authority to provide detenu an earliest opportunity of making an
effective and meaningful representation against his detention. The object is to
enable the detenu to convince the Detaining Authority and Government, as the
case may be, that all apprehensions regarding his activities are grossly
misplaced and his detention is unwarranted. To make the Constitutional and
Statutory right available to detenu meaningful, it is necessary that detenu be
informed with all possible clarity what is/are apprehended activity/ies that
persuaded Detaining Authority to make detention order.
12. A person of ordinary prudence would not be in a position to explain
his stand in reply to the grounds of detention detailed by the detaining
authority. The detenu has been kept guessing about the facts and events that
weighed with detaining authority and prompted detaining authority to record
subjective satisfaction regarding sufficiency of the material to warrant
preventive detention of detenu. It is well settled law that even where one of
grounds, relied upon by Detaining Authority to order detention, is vague and
ambiguous, Constitutional and Statutory right of detenu to make an effective
representation against his detention are taken to have been violated. Reference
in this regard may be made to law laid down in State of Maharashtra &ors v.
Santosh Shankar Acharya case (supra); Chaju Ram v. State of J&K AIR
1971 SC 263; Dr.RamKrishan v. The State of Delhi &ors. AIR 1953 SC 318;
MohdYousuf Rather v. State of J&K AIR 1979 SC 1925; and GhulamNabi
Shah v. State of J&K &ors. 2005(I) SLJ 251.
13. It is crystal clear that the relevant documents like copy of FIR,
copy of dossier and the copies of confidential reports relied upon by the
respondents while issuing detention order, have not been supplied to the
detenue. Therefore, the violation of provisions of the Public Safety Act as well
as Article 22(5) of the Constitution has been done by the respondents.
14. Thus, it is clear case of non-supply of relevant material to the
detenue, to prevent the detenue from making an effective representation against
his detention.
15. For the foregoing reasons, this petition is allowed and the
impugned detention order bearing No. DMR/INDEX-02 of 2021 dated
20.05.2021, passed by District Magistrate, Rajouri, is quashed. Respondents
are directed to release the detenue, namely, Ali Hayder son of Abdul Aziz
resident of Village Gundha Tehsil Khawas, District Rajouri, forthwith,
provided he is not required in any other case.
16. The petition is accordingly, disposed of on the above lines.
17. Record so produced be returned to the respondents against proper
receipt.
Jammu (Tashi Rabstan)
09.12.2021 Judge
Surinder
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
SURINDER KUMAR
2021.12.09 15:30
I attest to the accuracy and
integrity of this document
