Jammu & Kashmir High Court
Jatinder Singh Alias Shallu vs Union Territory Of J&K & Others on 30 December, 2021
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,
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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
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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
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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
