Jammu & Kashmir High Court
Akhilesh Sharma 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.56/2021
Akhilesh Sharma .....Petitioner
Through: Mr. K.S. Johal, Sr. Advocate with Mr.
Supreet Singh Johal, Advocate
versus
Union Territory of J&K & others .....Respondent(s)
Through: Mr. Vishal Bharti, Dy.A.G.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
1. Impugned in this petition is Communication No.DMU/JC/1153 dated
17.07.2021 issued by the District Magistrate, Udhampur, respondent No.2
herein, whereby one Mr. Vipan Kumar has been informed that his son, namely,
Akhilesh Sharma has been detained under the J&K Public Safety Act, 1978.
Order No.02-PSA-2021 dated 17.07.2021 issued by respondent No.2 is also
impugned in this petition, whereby the petitioner has been detained under the
said Act.
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 application of mind. It is also averred that the
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respondents did not explain him the grounds of detention, even the material
documents relied upon by the respondents, upon which the detention order has
been issued, have not been supplied to the petitioner-detenu. To cement his
arguments, learned counsel for detenu has placed reliance on a case, bearing
WP(Crl) No.26/2021, titled as, Pritam Singh vs UT of J&K, decided on
09.11.2021.
3. Respondent Nos.2 & 3 in their counter affidavits have averred that the
detenu has been detained only after following the due procedure in terms of
Public Safety Act.
4. Heard learned counsel appearing for the parties, considered their rival
contentions and also perused the photocopies of the record.
5. The specific case of petitioner-detenu is that the material documents
relied upon by the respondents, upon which the detention order has been
issued, were never supplied to him. A perusal of the counter affidavit filed by
respondent No.3, i.e., Senior Superintendent of Police, Udhampur, reveals that
nowhere in the counter affidavit it has been averred that the detenu was ever
supplied with the material documents including the copy of detention warrant,
grounds of detention, notice of detention, copy of dossier etc. nor it has been
averred that in which language the detenu was explained the grounds of
detention and other material. The counter affidavit is totally silent on this issue
and it seems the same has been drafted in an evasive way.
6. Article 22(5) of the Constitution of India and Section 13 of the J&K
Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as soon
as may be, of grounds on which order of detention is made, which led to the
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subjective satisfaction of detaining authority and also to be afforded earliest
opportunity of making representation against the order of detention. Detenu is
to be furnished with sufficient particulars to enable him to make a
representation, which on being considered, may obtain relief.
7. In the present case it seems that the copy of detention warrant, grounds
of detention, notice of detention, copy of dossier etc. were not provided to the
petitioner-detenu nor it has been borne out from the photocopies of record that
whether these material was read over and explained to detenu in the language
which he understands and whether in token of which his signatures had been
obtained. It seems the detention order was made without proper application of
mind. The Apex Court time and again has held that individual liberty
guaranteed by the Constitution cannot be taken way without proper application
of mind. Since the detention order has been passed in a mechanical manner, as
such the present case is nothing but an abuse to Public Safety Act.
8. Further, on different occasions with effect from 29.07.2018 to
28.03.2020 the police have registered five FIRs against the petitioner-detenu
on the ground of having in possession of heroine like substance. The first FIR
was registered on 29.07.2018 regarding possessing of six grams heroine like
substance, whereas the detention order was issued on 17.07.2021. However, it
has not been disclosed whether on forensic drug verification the seized
contraband was actually heroine even after the lapse of about three and a half
years. It has been averred that in the first four FIRs the petitioner-detenu has
already been given bail. The last FIR was registered on 28.03.2020 regarding
possessing of two grams of heroine, whereas the detention order was issued on
17.07.2021. It has not come on record that what prompted the respondents to
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slap the detention order against the petitioner-detenu after a lapse of one year
and nine months when the last FIR was registered on 28.03.2020.
9. Further, the petitioner has been shown to be a bachelor, at the age of 29
years, an engineer having qualification of B.C.A., but he has been detained at
Kot Bhalwal Jail where hard core criminals and convicted persons are
detained.
10. Without saying anything more, I deem it proper to allow the habeas
corpus petition and quash Order No.02-PSA-2021 dated 17.07.2021 as well as
Communication No.DMU/JC/1153 dated 17.07.2021 issued by the District
Magistrate, Udhampur, respondent No.2 herein. Ordered accordingly.
Respondent No.3 is directed the release the petitioner-detenu forthwith, if he is
not otherwise required in any other case.
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 12:55
I attest to the accuracy and
integrity of this document
