Mohd. Ashraf Wani Alias vs Ut Of J&K And Others
2023 Latest Caselaw 573 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                   WP (Crl) No. 282/2022

                                          Reserved on : 07.04.2023
                                          Pronounced on: 09.05.2023

Mohd. Ashraf Wani alias                          .... Petitioner/Appellant(s)
Ashraf Molvi

                        Through:-   Mr. Umar Farooq, Advocate.

                 V/s

UT of J&K and others                                     .... Respondent(s)

                        Through:-   Mr. Faheem Nisar Shah, G.A.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                             JUDGMENT

01. Through the medium of this petition, order No.

22/OMA/PSA/DET/2022 dated 10.04.2022, issued by the District

Magistrate, Anantnag, under Section 8 of the Jammu and Kashmir Public

Safety Act, 1978, detaining Mohd. Ashraf Wani @ Ashraf Molvi S/o Gh.

Nabi Wani, R/o Brinty Batpora, Anantnag District Anantnag, has been

assailed. This order of detention is challenged by the detenu through his

wife, Zubida Akhter.

02. The contention of the detenu is that the Detaining Authority has

passed the impugned detention order without any application of mind and

has been passed in violation of the constitutional safeguards. The

Detaining Authority has not spelled out any compelling reasons to pass

the detention order as the detenu was already in custody since 2017. The

detenu had moved a representation to the Detaining Authority through his

wife but the same was not considered by the respondents. It is also

contended that the allegations referred to in the order of detention are

vague, non-existent and detention order, as such, is un-justified and

illegal, and no prudent man can make an effective representation against

the order of detention. The Detaining Authority has not supplied all the

material relied upon and referred to in the grounds of detention while

passing the order of detention, as such, the same has vitiated his rights to

make an effective representation as guaranteed to him under Article 22(5)

of the Constitution of India. Lastly, the Detaining Authority has not

prepared the grounds of detention itself which were pre-requisite for the

Detaining Authority before passing the order of detention.

03. Mr. Faheem Nisar Shah, learned G.A, has filed the counter-affidavit

as well as produced the detention record. It is submitted by him that the

detenu was detained under the provisions of the Jammu and Kashmir

Public Safety Act, 1978, validly by virtue of order No.

22/OMA/PSA/DET/2022 dated 10.04.2022 passed by the District

Magistrate, Anantnag, as the activities of the detenu were highly

prejudicial to the maintenance of the security of the State, as such, in view

of the facts and circumstances of the case, preventive detention was found

necessary to prevent him from acting in any manner prejudicial to the

security of the State. It is submitted by him that the detenu was informed

of his right to make a representation to the Detaining Authority against the

order of detention.

04. All the statutory requirements and constitutional guarantees have

been fulfilled and complied with by the Detaining Authority while

keeping in view the object of the law of preventive detention.

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

06. A perusal of the detention record reveals that the detenu was detained

in terms of FIR No. 82/2017 u/s 302, 397, 326, 427, 120-B RPC 7/27 16, 18,

20 of the Unlawful Activities (Prevention) Act, 1967, registered at Police

Station, Achabal and was lodged in Central Jail, Kot Bhalwal, Jammu. A

specific averment has been made that the detenu was in custody, at the time

of passing of the order of detention, as he had neither applied for bail nor the

bail was due to him, as special offences are leveled against the detenu under

the Special Act, i.e., Unlawful Activities (Prevention) Act, 1967. The

Detaining Authority has not reflected any compelling reasons for his

detention nor has shown any awareness of this fact.

07. The grounds of detention do not reflect any awareness of the

Detaining Authority of the fact that the detenu is in preventive detention

or any compelling reasons for passing the order of detention, however, in

the Police Dossier, it is stated that the detenu was lodged at Central Jail,

Kot Bhalwal, Jammu and facing trial in case FIR No. 82/2017. This

reflects non-application of mind by the Detaining Authority.

08. The grounds of satisfaction that has to be recorded by the Detaining

Authority, in case, the detenu is already in custody in connection with

some other case has been considered by the Hon'ble Apex Court in

'Surya Prakash Sharma vs. State of U.P.', 1994 SCC (Cr.) 1691, in

which it has been held that:-

"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. To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelawat v. Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) answered the question in the following words:

"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 must show that:

(i) the detaining authority was aware of the fact that the detenue was already in detention and

(ii) there were compelling reasons justifying such detention despite the fact that the detenu 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 that 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."

The detaining authority has to disclose the compelling reasons for

detention and if the reasons are not disclosed the impugned order suffers

for non-application of mind. Grounds of detention indicate the lack of

awareness of the detaining authority, regarding the fact that the detenu

was in custody at the time his detention was directed. The detaining

authority has not brought on record to show that detention of the detenue

was necessary. Such subjective satisfaction of the detaining authority

cannot, therefore, be said to be proper and justified. The Detaining

Authority had not shown any material on record which necessitated the

passing of the impugned detention order. Thus, the subjective satisfaction

arrived at by the Detaining Authority in such a situation cannot be said to be

proper or justified.

09. In the present case, there is no mention of the fact that the detenu

has been arrested in connection of the FIR or the fact that the detenu

continued to be in custody but even if that be the case, the Detaining

Authority has failed to provide any compelling reasons in the grounds of

detention for showing its satisfaction that the detenu is likely to be

released from custody shortly. This non-awareness of the fact would

vitiate the order of detention.

10. It is next argued that the detenu had moved a representation to the

Detaining Authority which is annexed with this petition and has been duly

received by the competent authority on 23.04.2022. The respondents,

despite having knowledge of the same have not considered the

representation of the detenu which has resulted in the infraction of

valuable rights which has accrued to the detenu.

11. Article-22(5) of the Constitution of India provides that when any

person is detained, the Detaining Authority shall, as soon as may be,

communicated to the detenu, the grounds on which the detention order has

been made and shall afford him an earliest opportunity of making an

effective representation against the order of the detention. This right to

make a representation can only be exercised by the detenu provided all the

material relied upon, while passing the order of detention are provided to

be detenu. In order to make an effective representation, the detenu must

know the fact of what weighed in the mind of the Detaining Authority for

passing the impugned order of detention.

12. Law is well settled in this regard that there is obligation on the

Government to consider the representation of the detenu without any delay.

The Hon'ble Apex Court in 'K.M. Abdulla Kunhi & B.L. Abdul Khader

vs. Union Of India and others', (1991) 1 SCC 476, it was held that:

"10. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.

Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible."

The impugned order is, therefore, liable to be quashed on this

count also.

13. In view of the aforesaid reasons, there is no need to advert to

other grounds raised in this petition.

14. This petition is accordingly allowed. The impugned detention

order No. 22/OMA/PSA/DET/2022 dated 10.04.2022 passed by the

District Magistrate, Anantnag, is quashed. The detenu- Mohd. Ashraf

Wani @ Ashraf Molvi, S/o Gh. Nabi Wani is directed to be released from

the custody forthwith provided he is not required in any other case.

15. Detention record be returned to learned counsel for the

respondents by the Registry.

(Sindhu Sharma) Judge

Srinagar:

09.05.2023
Michal Sharma


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