Javaid Ahmad Thoker vs Ut Of Jammu And Kashmir& Another
2023 Latest Caselaw 53 j&K/2

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR

                              WP (Crl) No.321/2022

                                                        Reserved on: 01.02.2023
                                                    Date of Decision: 06.02.2023

Javaid Ahmad Thoker
                                                                 .........Petitioner

                                          Through: Mr. Wajid Haseeb, Advocate

                                      Versus

UT of Jammu and Kashmir& another
                                                            .........Respondent(s)

                                                  Through: Mr. Usman Gani, GA.
CORAM:

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

                               JUDGEMENT

1. The instant writ petition arises out of the detention order bearing No. 35/DMK/PSA/2022 dated 24.04.2022 (hereinafter for short "the impugned order") passed against the detenu namely Javaid Ahmad Thoker by respondent no.2 - District Magistrate, Kulgam (for brevity "the detaining authority"), under and in terms of provisions of the Jammu & Kashmir Public Safety Act, 1978 (for short the „Act‟). The detention order dated 24.04.2022 is challenged by the petitioner through the medium of instant petition and is seeking quashment of the same on the grounds taken in the writ petition.

2. It is being stated in the petition that the detenu is a law-abiding citizen and has never indulged in any subversive activity prejudicial to public order or security of the State. The detenu is stated to have been arrested and thereafter detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Kotebalwal, Jammu.

3. It is being also stated that the detenu came to be detained by the detaining authority without there being any compelling reason therefor,

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more so, when there was no possibility of the release of the detenu from the custody on account of his alleged involvement in FIR No. 204/2021 registered at Police Station, Kulgam, for offences under sections147, 148, 149, 336, 427, 332, 307 IPC and 13 ULAP Act.

4. It is being also stated that the detenu had not been provided copies of the relevant material, like copy of dossier, details with regard to the alleged association of the detenu with the militant organizations or his links with secessionist organizations. Besides, the date and year of the acts which the detenu is alleged to have committed have not been referred to in the grounds of detention which has deprived the detenu to file an effective representation against his detention. The said failure on the part of the respondents is stated to have infringed constitutional and statutory rights of the detenu guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu & Kashmir Public Safety Act. It is also urged that notwithstanding the non-furnishing of the material relied upon by the detaining authority, the detenu submitted a representation against the detention which was neither considered nor decided by the respondents.

5. Per contra, respondents, in their reply affidavit filed to the petition, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that the detenu was detained pursuant to impugned order. It is being further stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

6. It is next being averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent Central Jail, Kotbalwal, for lodgment and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu

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subscribed his signatures on the execution report/order.

Heard learned counsel for the parties, perused the record and considered the matter.

7. While dealing with the contention urged by the counsel for the petitioner qua non-recording of compelling reasons for detaining the detenu when he was already in custody, it would be appropriate to refer to the judgement of the Apex Court in this regard passed in case titled Surya Prakash Sharma v. State of U.P and Others, reported in 1994 (3) SCC 195, wherein at paragraph 5 following has been noticed and laid down:

"5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw V. District Magistrate, Burdwan (1964) 4 SCR 92: AIR 1964 SC 334: (1964) 1Crl LJ 257. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat V. Union of India (1990) 1 SCC 746: 1990 SCC (Crl) 249: AIR 1990 SC 1196, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words(SCC 754 para 21:

"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression „compelling reasons‟ in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per the mandate laid down by the Apex Court in the case of Surya Parkash Sharma (supra), while passing the impugned

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detention order against the detenu, so much so, the detaining authority has also failed to express any compelling reasons. The impugned order, thus in law, does not sustain on this count alone.

8. Another contention urged by the petitioner relating to non-supply of material has taken this Court to have a perusal of detention record, made available by learned counsel for respondents. Plain reading thereof amongst others reveals that only four leaves have been given to the detenu.

Perusal of impugned detention order further reveals that on the basis of dossier placed before detaining authority by the Senior Superintendent of Police, Kulgam, the detaining authority has drawn satisfaction thereon that with a view to prevent the detenu from acting in any manner prejudicial to the security of the State, to detain the detenu under necessary provisions of law. It is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. All that has weighed with detaining authority in issuance of order of detention assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Jammu & Kashmir Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. Failure on the part of detaining authority to supply material, relied upon at the time of making detention order to detenu, renders detention order illegal and unsustainable, which is fortified by the judgment of the Apex Court passed in Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; DhannajoyDass v. District Magistrate, AIR,

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1982 SC 1315; Sofia Gulam MohdBham v. State of Maharashtra and others AIR 1999 SC 3051.

Further the Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has laid down that it is only the procedural requirements, which are the only safeguards available to a detenu, that are to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, procedural requirements, as discussed above, have not been followed and complied with by respondents in letter and spirit as a consequence whereof the detention order is rendered unsustainable in law.

Here 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 paragraphs 29, 33 & 35, following has been observed:-

"29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema 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 follows, 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 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

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

A further reference to the judgement of the Apex court passed in case titled as "Abdul Wahab Sheikh v. B. K. Jha, reported in 1987(2) SCC 22" would also be relevant wherein at paragraph 5, following has beennoticed andobserved:-

"... 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."

9. Next contention urged by the petitioner in the petition is that he submitted a representation against the detention which was not considered by the respondents.

Perusal of the record of the petition reveals that a representation has been made on behalf of the detenu through his brother, forming Annexure-V to the instant petition, acknowledged to have been received by the office of District Magistrate, Kulgam. The said contention has not been denied by the respondents in their reply affidavit, thus, resulting into drawing of an adverse inference against the respondents in this regard. The failure of the respondents to

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consider the representation submitted by the detenu indisputably amounts to violation of the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgement of the Apex Court passed in case titled as Rahmatullah v. State of Bihar and others reported in 1979 (4) SCC 559, would be relevant and germane hereunder wherein at paragraph 4, it has been 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 to 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 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."

It is also settled law that there should not be supine indifference, slackness or callous attitude in considering the representation and any unexplained delay in disposal of a representation would be breach of the Constitutional imperative and it would render the continued detention impermissible and illegal, is what has been said and held by the Apex Court in K. M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476, followed in Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417 and iterated in Ummu Sabeena v. State of Kerala, (2011) 10 SCC

781.

In the latest judgement passed the Hon‟ble Apex Court in case titled "The State of Manipur & others v. Buyamayum Abdul Hanan" reported

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as 2022 SCC Online SC 1455, delivered on 19th of October, 2022 at paragraph 24 following has been held:

"24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the High Court in setting aside the order of preventive detention under the impugned judgment."

10. In view of the aforesaid position obtaining in the matter the rest of the conditions urged in the petition need not to be dealt with and same essentially pale into insignificance.

11. It is significant to mention here that the judgements referred to and relied upon by the counsel for the respondents are not applicable to the facts and circumstances of the case being misplaced and misdirected and do not lend any support thereof to the case of the respondents.

12. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No. 35/DMK/PSA/2022 dated 24.04.2022, is quashed, with the direction to the respondents including the Jail authorities concerned to release the detenu forthwith from preventive custody unless required in any other case.

13. Disposed of.

14. Record produced by counsel for the Respondents for perusal of the Court is returned to him in the open Court.

(Javed Iqbal Wani) Judge Srinagar 06.02.2023 N Ahmad Whether approved for reporting? Yes