Jammu & Kashmir High Court

Mohammad Akram vs Union Territory Of J&K & Ors on 19 March, 2021

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                      WP(Crl.) No.52/2020
                                      CrlM No. 1833/2020

                                Reserved on:- 10.03.2021
                                Pronounced on:- 19.03.2021


Mohammad Akram                                     ...petitioner(s)

              Through: - Mr. Muzaffar Iqbal Advocate
Vs.

Union Territory of J&K & ors.                        ...Respondent(s)

              Through: - Mr. Bhanu Jasrotia G.A.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1. Through the medium of instant petition, the petitioner

(hereinafter referred to as the 'detenue') has challenged the order of

detention bearing No.DMR/INDEX-02 of 2020 dated 18.11.2020

passed by respondent No.2 (hereinafter referred to as the 'detaining

authority') whereby the detenue has been detained in terms of the

provisions of J&K Public Safety Act, 1978 (hereinafter referred to as

the 'Act').

2. The detenue has challenged the impugned order of detention on

the grounds that he has not been supplied the grounds of detention

and the material in support thereof in the language that is understood

by him as he is an illiterate person; that he has not been informed

about his right to make an effective representation before the

detaining authority against the impugned detention order; that there is

complete lack of application of mind on the part of the detaining

authority while framing the grounds of detention, inasmuch as the

same are more or less xerox copy of the dossier submitted by the

police; that the detenue's father had died in the year 1999 and in spite

of this, the detaining authority has forwarded the impugned order of

detention to his father which shows complete non-application of mind

on the part of the detaining authority and that the Statutory and the

Constitutional safeguards required to be followed while passing an

order of preventive detention, have not been complied with in the

instant case.

3. The petition has been resisted by the respondents by filing a

counter affidavit thereto. In their counter affidavit, the respondents

have submitted that all the Statutory and the Constitutional safeguards

have been taken care of while passing the impugned order of

detention and that all the material including the copies of FIR etc.,

mention whereof is made in the grounds of detention, have been

furnished to the detenue. It has been further submitted that the

impugned order of detention stands confirmed by the Advisory Board.

It has also been averred that the detaining authority, while passing the

impugned order of detention, has minutely scrutinised the material

and applied its mind. The respondents have also produced the

detention record to support their version.

4. I have heard learned counsel for the parties and perused the

material on record including the detention record.

5. During the course of arguments, learned counsel for the detenue

confined his arguments to the contention that the detenue, in the

instant case, has not been informed about his right to make an

effective representation to the Detaining Authority against the

impugned order of detention, thereby violating the Constitutional right

guaranteed to him under Article 22 (5) of the Constitution of India.

6. A perusal of impugned order of detention shows that it has been

passed on 18.11.2020 by respondent No.2 in exercise of its power

under Section 8 of J&K Public Safety Act.

7. The covering letter dated 18.11.2020 to the impugned order of

detention gives an information to the detenue that he can make a

representation before the Government against the impugned order of

detention, but it does not, at all, bear any reference to the fact that the

detenue has a right to make representation to the Detaining Authority

itself.

8. In the counter affidavit, the respondents have categorically

submitted that the detenue, pursuant to the impugned order of

detention, was detained on 18.11.2020 and the order of detention was

approved by the Government on 27.11.2020 which means that from

18.11.2020 to 27.11.2020, it was open to the petitioner to make a

representation to the Detaining Authority against the impugned order

of detention.

9. Section 19 of J&K Public Safety Act provides that without

prejudice to the provisions of Section 21 of the J&K General Clauses

Act, a detention order may, at any time, be revoked or modified by

the Government. Section 21of J&K General Clauses Act provides that

power to make an order includes the power to revoke or modify it,

which means that an Authority which is empowered to make an order

is deemed to be vested with the power to revoke or modify the said

order. Thus, the detaining authority until the order of detention passed

by it is confirmed by the Government, is vested with the power to

revoke it. Therefore, respondent No.2 was vested with the power to

revoke the impugned order of detention until it was approved by the

Government on 27.11.2020. The detenue, therefore, had a valuable

right of making a representation before the Detaining Authority

seeking revocation of the impugned order of detention until the same

was approved the Government.

10. The Supreme Court has, in the case of State of

Maharashtra vs. Santosh Shankaracharya, (2000) 7 SCC 468,

while interpreting the provisions of Section 8(1) and Section

14(1) of Maharashtra Prevention of Dangerous Activities of

Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons

Act, 1981, which are in pari materia with the provisions of Section

13(1) and Section 19(1) of J&K Public Safety Act respectively,

observed as under:

"The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenue and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenue that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court

in Kamlesh Kumar's case (supra) would apply notwithstanding the fact that in Kamlesh Kumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA".

11 Relying upon the aforesaid ratio laid down by the Supreme

Court in Santosh Shankaracharya's case (supra), a Division Bench

of this Court in Tariq Ahmad Dar vs. State of J&K and ors, 2017

(3) JKJ (HC) 684, has held that non- communication of right of

making a representation to a detenue before the Detaining Authority

constitutes an infraction of valuable right accrued to a detenue which

renders the order of detention unsustainable in law. The observations

of the Division Bench in the aforesaid case are relevant to the context

and the same are reproduced as under:

"12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari material to the provisions of Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.13........................................................................

14.........................................................................

15.From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a

representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention"

12 From the aforesaid enunciation of law on the subject, it is clear

that non-communication of the fact that the detenue has a right to

make an effective representation to the Detaining Authority against

the detention order so long as the order of detention has not been

approved by the Government constitutes violation of valuable right of

the detenue under Article 22(5) of the Constitution. That being the

position in the instant case, the impugned order of detention is not

sustainable in law.

13 The cumulative effect of the aforesaid discussion leads to the

only conclusion that in the instant case, the respondents have not

adhered to the legal and Constitutional safeguards while passing the

impugned detention order against the detenue. The impugned order of