Farooq Ahmad Bhat Alias Tawheedi vs Union Territory Of J&K And Others
2021 Latest Caselaw 587 j&K/2

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                       (Through Video Conferencing)
                                              Pronounced On: 25 .05.2021.

                                                      WP (Crl) No. 139/2020
                                                       CrLM No. 608/2020
                                                       CrLM No. 609/2020
Farooq Ahmad Bhat Alias Tawheedi
                                                               Petitioner (s)
                                Through: -
                       Mr. Syed Musaib, Advocate.
                                    V/s
Union Territory of J&K and Others
                                                          .....Respondent(s)
                                Through: -
                         Ms. Asifa Padroo, AAG.

CORAM:
        Hon'ble Mr. Justice Javed Iqbal Wani, Judge.

                             JUDGEMENT

1. The detenue namely Farooq Ahmad Bhat @ Tawheedi has filed the

instant petition through his son Irfan Farooq, seeking quashment of

detention order bearing No. 102/DMB/PSA/2020 Dated 11.07.2020,

passed by respondent No. 2 where under the detenue has been ordered

to be detained under Section 13 of the J&K Public Safety Act, 1978.

2. The order of detention is being challenged inter-alia mainly on the

grounds that the same has been passed without application of mind, in

that, the detenue had been granted bail in all the FIRs referred to and

relied upon in the grounds of detention and that the detaining

authority despite having received a representation of the detenue

forwarded against the order of detention failed to consider the same.

3. Per contra, respondents in their reply affidavit justify the passing of

order of detention against the detenue contending that the same has

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been passed validly and legally by the detaining authority keeping in

view the activities of the detenue being prejudicial to the maintenance

of security of the State.

4. Heard learned counsel for the parties and perused the record.

5. Learned appearing counsel for the parties while making their

respective submissions reiterated the contentions raised and grounds

urged in their respective pleadings.

6. Before adverting to the controversy involved in the petition, it would

be appropriate and advantageous to refer to the judgement of the Apex

Court passed in case titled as "Rekha Vs. State of Tamil Nadu,

reported in 2011 (5) SCC 244" being relevant and germane herein,

wherein at paras 29, 33 & 35 it has been observed and laid down as

under: -

"29. Preventive detention is, by nature, repugnant to democratic ideas and an apathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guarantee by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follow, therefore, that if the ordinary law of the land (the Penal Code and other penal statues) can deal with a situation, recourse to a preventive detention law will be illegal."

"33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case that even if a person is

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liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Article 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to"

"35.It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion" (vide State of Maharashtra v. Bhaurao Punjabrao Gawande, SCC para

63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the

WP (Crl) No. 139/2020

procedural safeguards, however technical, is, in our opinion mandatory and vital."

A reference to the judgement of the Apex court passed in case titled as

"Abdul Wahab Sheikh Vs. B. K. Jha, reported in 1987 (2) SCC

22" would also be relevant wherein at para 5, following has been

noticed and observed as under: -

" .............. We only desire to add that in a Habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the constitution and the statute have been complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirement are the only safeguard available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirement are therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional right guaranteed to him in that regard."

7. Coming to the first ground of challenge noted in the preceding paras,

it is revealed that there is no denial to the fact by the respondents in

the reply affidavit that the detenue stands released in all the FIRs.

Even the order of detention, grounds of detention, so much so the

record does not anywhere reveal or suggest that the detaining

authority was aware about the said fact.

The law enjoins upon the detaining authority to be alive

to all the facts and circumstances of the case and on application of

mind to all those facts and circumstances, the detaining authority has

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to draw subjective satisfaction that the detention of the detenue

becomes imperative. In case all the facts are not brought to the notice

of the detaining authority or that the detaining authority is not aware

of all the facts and circumstances and without considering the same it

derives subjective satisfaction to detain a person, the same would

amounts to non-application of mind on its part.

A reference here to the judgment of the Apex passed in

case titled as "Vijay Narain Singh Vs. State of Bihar and Ors.,

reported in 1984 (3) SC 14" being relevant and germane would be

advantageous wherein following has been observed and noticed: -

"It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."

The failure on the part of the detaining authority to show

awareness with regard to the bail granted to the detenue in all the FIRs

WP (Crl) No. 139/2020

supra per-se amounts to non-application of mind on its part vitiating

the order of detention.

8. So far as the second ground of challenge, as noticed in the preceding

paras is concerned, there again is no denial by the respondents in their

reply affidavit to the contention of the petitioner that a representation

against the order of detention had been forwarded to the respondent

No. 2 and that the same had not been considered.

Perusal of the copy of the representation attached with

the petition, prima-facie suggest that same has been received by the

office of respondent no. 2 on 18.08.2020. The failure of the

respondents to reply to the said contention of the petitioner in law

necessitates thus, drawing an adverse inference against them in this

regard.

A reference here to the judgement of the Apex court

passed in case titled as "Rahmatullah Vs. State of Bihar and Ors.,

reported in 1979 (4) SCC 559", being relevant and germane herein

would be appropriate wherein at Para 4, it is noticed and observed as

under: -

"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought o be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an

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order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution."

The non-consideration of the representation of the

detenue by the respondents cannot but said to be infringement of

Article 22(5) of the Constitution thus, vitiating the order of detention.

9. In view of the aforesaid position obtaining in the matter the other

grounds of challenge urged in the petition pale into insignificance and

need not to be dealt with.

10. The judgement relied upon by counsel for the respondents passed in

case titled as "Union of India Vs. Dampel Happy Dhakad reported

in 2019 (20) SCC 609", is not applicable to the facts and

circumstances of the case, in view of the fact that the following two

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points had arisen for consideration therein;

(i) Whether the orders of detention were vitiated on the ground that relied upon documents were not served along with the orders of detention and grounds of detention? Whether there was sufficient compliance of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act ?

(ii) Whether the High court was right in quashing orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenue being released on bail ?

The aforesaid points admittedly are not in issue in the instant

petition and therefore, the judgement relied upon is misplaced.

11. Viewed thus, in the context what has been observed, analyzed and

considered in the preceding paras the instant petition is allowed and

consequent to which the impugned order of detention bearing No.

102/DMB/PSA/2020 Dated 11.07.2020 is quashed, with the direction

to the respondents to release the detenue forthwith from the preventive

custody, unless the detenue is required in any other case.

12. Disposed of along with all connected CrLM(s).

13. Registry to retain the scanned copy of the detention record with the

file.

(Javed Iqbal Wani) Judge Srinagar 25 /05/2021 "Ishaq"

                  i.    Whether the Order is speaking?                  Yes/No.
                  ii.   Whether the Order is reportable?                Yes/ No.