Jammu & Kashmir High Court

Noor Din @ Jattu vs Union Territory Of J & K & Ors on 22 March, 2022

                                                                           Sr. No. 23



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                  WP (Crl) No. 44/2021
                                                  CrlM No. 1301/2021

                                                  Reserved on: 08.03.2022
                                                  Pronounced on:22.03.2022

Noor Din @ Jattu                                                     .....Petitioner(s)

                                 Through :- Mr. Muzaffar Iqbal Khan, Advocate


                           v/s

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

                                 Through :- Mr. Dewakar Sharma, Dy AG


CORAM: HON‟BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE

                                  JUDGMENT

22.03.2022

1. Respondent No.2 namely District Magistrate, Kathua (hereinafter called

'Detaining Authority') in exercise of powers under Section 8 of the

Jammu & Kashmir Public Safety Act, 1978 (for short, „Act of 1978‟),

passed the detention Order No. PSA/106 dated 23.06.2021 (for short

'impugned order'), in terms whereof the detenue namely Noor Din @

Jattu S/O Alam Din R/O Bakrak Colony, Tehsil Marheen District Kathua

has been detained.

2. The impugned detention order has been challenged through the medium

of the instant petition, being in breach of the provisions of Article 22(5) of

the Constitution of India read with Section 13 of the J&K Public Safety

Act, 1978.

3. It is being pleaded in the petition that the detaining authority-respondent

No.2 has not attributed any specific allegation against the detenue.

Furthermore, it is stated that the detenue has been incapacitated in filing a

representation as the grounds of detention are not in a language which

could be understood by the detenue. It is also being stated that the detenue

is not an English literate person and understands only Urdu language but

the order of detention is in English and it is not possible for him to

understand such a hyper technical language. It is also the submission of

learned counsel for the detenue that the order of detention and the

connected documents annexed with the petition clearly show violation of

right of the detenue guaranteed in terms of the Article 22(5) of the

Constitution of India.

4. Respondents in their counter affidavit have stated that the detenue was

ordered to be detained for maintenance of 'public order' and had he been

let free there would have been every likelihood of his re-indulging in

criminal activities as he is a hardcore criminal. It is further stated that

detention of the petitioner under preventive law is only to keep the

petitioner at bay, as a precautionary measure and not as a punishment.

5. Heard learned counsel for both the sides at length and considered the

record.

6. Learned counsel for the detenue while being heard makes reference to the

grounds of the detention and states that on a cursory look on the same it is

manifest that same are vague. It is also submitted that the Detaining

Authority on the basis of dossier submitted by Senior Superintendent of

Police, Kathua, without application of mind and without evaluating the

allegations alleged against the detenue in the said dossier, which was not

provided to the detenue, proceeded to pass impugned detention order

whereby the detenue has been detained and directed to be lodged at

Central Jail Jammu. In addition, learned counsel submitted that the

allegations levelled against the detenue are totally vague as nothing

specific has been stated in the grounds of detention.

7. In rebuttal, learned Dy GA submits that the record reveals that there is no

vagueness in the grounds of detention. The procedural safeguards

prescribed under the provisions of Public Safety Act and the rights

guaranteed to the detenue under the Constitution have strictly been

followed in the instant case. The detenue has been furnished all the

material, as was required, and was also made aware of his right to make

representation to the detaining authority against his detention.

8. Personal liberty is one of the most cherished freedoms, perhaps more

important than the other freedoms guaranteed under the Constitution. It

was for this reason that the Founding Fathers enacted the safeguards in

Article 22 in the Constitution so as to limit the power of the State to

detain a person without trial, which may otherwise pass the test of Article

21, by humanising the harsh authority over individual liberty. In a

democracy governed by the rule of law, the drastic power to detain a

person without trial for security of the State and/or maintenance of public

order, must be strictly construed. However, where individual liberty

comes into conflict with an interest of the security of the State or public

order, then the liberty of the individual must give way to the larger

interest of the nation.

9. Before appreciating the rival contentions of the parties, it would be

appropriate to note that the procedural requirements are the only

safeguards available to the detenue since the Court cannot go behind the

subjective satisfaction of the detaining authority as has been laid down by

Hon'ble Apex Court in a case titled Abdul Latif Abdul Wahab Sheikh

Vs B.K. Jha & Anr., reported as (1987) 2 SCC 22. The procedural

requirements are, therefore, to be strictly complied with, if any value is to

be attached to the liberty of the subject and the constitutional rights

guaranteed to him in that regard.

10. The detention record, as produced, reveals that the detenue was involved

in following of cases registered at Police Stations, Rajbagh and

Lakhanpur:-

FIR No. 233/2010 u/s 341, 323, 354 RPC;

FIR No. 41/2012 u/s 452, 323, 34 RPC;

FIR No. 69/2014 u/s 452, 323, 436, 427, 364, 34 RPC; FIR No. 24/2016 u/s 188 RPC;

FIR No. 70/2016 u/s 341, 147, 148, 323, 324 RPC; FIR No. 264/2016 u/s 325, 323 RPC;

FIR No. 59/2017 u/s 307, 147, 148, 323, 324 RPC; FIR No. 180/2017 u/s 341,323, 324, 325 RPC r/w 4/25 Arms Act; FIR No. 55/2019 u/s 452, 323, 147 RPC r/w 3/25 Arms Act; FIR No. 90/2019 u/s 341, 323, 34 RPC;

FIR No. 147/2019 u/s 452, 323, 506, 147 RPC; FIR No. 211/2020 u/s 452, 323, 147 RPC;

FIR No. 64/2021 u/s 188 IPC r/w 11 PCA Act; and FIR No. 101/2021 u/s 341, 323, 34, 382 IPC.

Involvement of the detenue in the aforementioned cases appears to have

heavily weighed with the detaining authority while passing detention

order.

11. The requirement of law is that whole of the record, on which the detention

order is based, has to be made available to the detenue in the language

that he understands. As per the execution report, he has been furnished

copies of detention warrant, grounds of detention, dossier and copies of

FIRs total fifty six leaves. However, he has not been provided with copies

of charge-sheets and statements of the witnesses. The detenue, thus cannot

be said to be provided with whole of the record which based his detention,

so as to make an effective representation. The detention order also does

not indicate with regard to the right of making representation. The failure

on the part of the detaining authority to supply material renders detention

illegal and unsustainable.

12. Hon'ble the Supreme Court in a case titled Chaju Ram Vs The State of

Jammu & Kashmir, reported as AIR 1971 SC 263, held in Para-9 of the

judgment as under:-

".........The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable-right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the-detenu in his own language was not complied with."

13. It shall also be quite apposite to reproduce the following portions from

Paras 3 and 5 of the judgment rendered by Hon'ble the Supreme Court in

the case titled "Raziya Umar Bakshi Vs Union of India & Ors." (AIR

1980 SC 1751):

"3.......The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie.

5..........in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands."

14. The Hon'ble Apex Court in the judgment rendered in the case of "Sophia

Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC

3051), has also held as under:

"The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."

15. Vide impugned order, the Detaining Authority has not communicated to

the detenue the time limit, in which, he could make a representation to

him, till approval of the detention order by the Government. In a case of

National Security Act, titled "Jitendra Vs. Dist. Magistrate, Barabanki

& Ors.", reported as 2004 Cri.L.J 2967, the Division Bench of Hon'ble

Allahabad High Court, has held:-

"10. We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the right fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be the grounds of detention."

16. This is another reason, as to why the impugned order would be vitiated

since the detenue's right to make a representation to the detaining

authority was only available to him till approval of detention order by the

Government, it follows as a logical imperative that the detaining authority

should have communicated to the detenue in the grounds of detention the

time limit, in which, he could make a representation to it i.e., till the

approval of the detention order by the State Government.

17. Reproducing the dossier prepared by the Senior Superintendent of Police,

Kathua in the order of detention, almost word by word; non furnishing of

the whole of the record in which detention order was based; furnishing the

material in English and not the language of the detenue, all reflect that the

Detaining Authority has not applied its mind to draw the subjective