Jammu & Kashmir High Court
Ishfaq Ahmed Naik vs Union Territory Of J&K & Anr on 11 May, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 03.05.2023
Pronounced on: .05.2023
WP(Crl.) No.25/2022
Ishfaq Ahmed Naik ...PETITIONER(S)
Through: - Mr. Muzaffar Iqbal Khan, Advocate.
Vs.
UNION TERRITORY OF J&K & ANR. ...RESPONDENT(S)
Through: - Mrs. Monika Kohli Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the instant petition, quashment of order No.15/PSA of 2022
dated 09.06.2022, issued by District Magistrate, Ramban (for brevity
"detaining authority") is sought. In terms of the aforesaid order, Ishfaq
Ahmed Naik son of Late Abdul Majeed resident of Ahamarigami Tehsil
Khari District Ramban (for short "detenu") has been placed under
preventive detention and lodged in Central Jail Kotbhalwal, Jammu.
2) The detenu has contended that the Detaining Authority has passed
the impugned detention order mechanically without application of mind,
inasmuch as the grounds of detention are mere reproduction of the
dossier. It has been further contended that the statutory safeguards have
not been complied with in the instant case. It has been also urged that
whole of the material which formed basis of the grounds of detention
and the consequent order of detention has not been provided to the
detenue. It has been contended that the grounds of detention are vague,
non-existent and stale.
3) The respondents, in their counter affidavit, have disputed the
averments made in the petition and insisted that the activities of detenue
are highly prejudicial to the security of the UT of Jammu and Kashmir,
particularly in Banihal area which is in close proximity to South
Kashmir. It has been submitted that the grounds urged by the detenu are
legally misconceived, factually untenable and without any merit and that
the impugned detention order has been passed strictly in accordance with
law occupying the field. In support of their stand taken in the counter
affidavit, the respondents have also produced the detention record.
4) I have heard learned counsel for parties and perused the material
on record.
5 Learned counsel for the detenu, while seeking quashment of the
impugned order, projected various grounds but his main thrust during the
course of arguments was on the ground that the detenu was not informed
about his right to make an effective representation to the Detaining
Authority against his detention.
6) I have heard learned counsel for the parties and perused the
material available on record.
7 A perusal of the detention record reveals that the detaining authority
vide its communication bearing No. DMR/192-96 dated 09.06.2022,
forwarded the order of detention and the grounds of detention to the
detenu through SSP, Ramban and informed him that he has a statutory
right to make representation against the said detention order to the
Government. This clearly shows that the detaining authority has failed to
inform the detenue about his independent right to file representation
against his detention to the detaining authority while informing him
about his right to file a representation against the detention order to the
Government.
8) From the perusal of communication dated 09.06.2022, it is clear
that the detenu was not informed by the respondents about his right to
make a representation to the detaining authority, thereby depriving him
of a vital constitutional/statutory right. The failure on the part of
detaining authority to inform the detenu about his right to make
representation to it renders the detention order illegal and unsustainable
in law. On this ground alone, the detention order is liable to be quashed.
9 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 WP(Crl) 21/2020 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 detenu
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 detenu 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 detenu under Article 22(5) of
the Constitution and the ratio of the Constitution Bench decision
of this Court in Kamlesh Kumars case (supra) would apply
notwithstanding the fact that in Kamlesh Kumars case (supra)
the Court was dealing with an order of detention issued under
the provisions of COFEPOSA".
10 From the aforesaid enunciation of law on the subject, it is clear
that non-communication of the fact that the detenu 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 detenu
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.
11 For the foregoing reasons, the petition is allowed and the impugned
detention order is quashed. The detenu is directed to be released from the
preventive custody forthwith provided he is not required in connection
with any other case.
5) The detention record be returned to learned counsel for the
respondents.
(Sanjay Dhar)
Judge
JAMMU
11 .05.2023
"SANJEEV"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
