Jammu & Kashmir High Court
Leaqat Ali vs Ut Of J&K And Others on 5 October, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 5.10.2023
WP(Crl) No. 82/2022
CM No. 7250/2022
Leaqat Ali .... Petitioner/Appellant(s)
Through:- Mr. S.S. Ahmed, Advocate with
Mr. M. Zulkernain Chowdhary, Advocate.
V/s
UT of J&K and others .....Respondent(s)
Through:- Mr. Eishaan Dadhichi, G.A.
CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
05.10.2023
01. The petitioner has assailed the detention Order No. 32/PSA of
2022 dated 04.11.2022 issued by the District Magistrate, Ramban, in this
petition. By virtue of the impugned detention order, the District
Magistrate, Ramban, (hereinafter referred to as „Detaining Authority‟) in
exercise of powers under Section 8 of the J&K Public Safety Act, 1978,
has placed the Liaqat Ali (hereinafter referred to as „detenu‟) in preventive
custody under the provisions of Public Safety Act to prevent him from
acting in any manner prejudicial to the maintenance of public order.
02. The detenu, aggrieved of the detention order, has challenged its
legality and validity on the grounds that; (i) there is total non-application
of mind by the Detaining Authority while passing the order of the
detention, the Detaining Authority has relied on the dossier submitted by
SSP, Ramban, without recording its subjective satisfaction; (ii) all the
relevant material relied upon by the Detaining Authority while passing the
order of detention has not been provided to the detenu enabling him to
make an effective representation before the Detaining Authority; (iii) the
grounds of detention mentioned in the detention order are a verbatim copy
of the dossier, as such, there is total non-application of mind; (iv) the
detenu has made a representation through proper channel to the Detaining
Authority but the same has not been considered by the respondents which
has resulted in infraction of the constitutional and statutory rights
available to the detenu.
03. Mr. Eishaan Dadhichi, learned Government Advocate, has filed
the counter affidavit and also produced the detention record. It is
submitted by him that the activities of the detenu were highly prejudicial
to the maintenance of public order, as such, the detenu was detained vide
order dated 04.11.2022 passed by the District Magistrate, Ramban, in
accordance with the provisions of Public Safety Act. It is pleaded that the
detention order, grounds of detention as well as all the other material
relied upon by the Detaining Authority was supplied to the detenu. The
procedural safeguards prescribed under the Public Safety Act and other
rights guaranteed to detenu under the Constitution of India have been
followed.
04. Heard learned counsel for the parties and perused the detention
record.
05. Learned counsel for the detenu has raised number of grounds in
support of his contentions but during the course of arguments has laid
stress on the contention that the detenu was not provided all the material
which formed the basis of the grounds of detention.
06. Perusal of the detention record reveals that all the material relied
upon by the Detaining Authority while passing the order of detention has
not been provided to the detenu. The execution report reveals that
respondents have provided order, relevant material and documents to the
detenu. The receipt of grounds of detention reveals that the detenu has
been provided only 5 leaves through, it appears that the detenu has not
been provided dossier and other relevant material relied upon by the
respondents while passing the detention order. The detention of the detenu
is based on the police dossier of SSP, Ramban and this dossier has not
been provided to the detenu. The detenu must know what weighed with
the Detaining Authority while passing the order of detention in order to
make an effective representation.
07. The detenu has a right to make an effective representation but an
effective and purposeful representation can only be made if the detenu is
provided all the material as per the Rights available to him under Article
22(5) of the Constitution of India. The failure on the part of the Detaining
Authority in supplying the material has rendered his detention illegal and
unsustainable.
08. Article-22(5) of the Constitution of India provides that when any
person is detained, the Detaining Authority shall, as soon as possible 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.
09. In „Sophia Ghulam Mohd. Bham V. State of Maharashtra and
others‟, AIR 1999 SC 3051, the Hon‟ble Apex Court observed 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 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....."
10. Learned counsel for the petitioner submits that the detenu has
made a representation to the Detaining Authority against his detention.
The copy of representation has been placed on record but this
representation has not been considered by the respondents till date.
11. The Hon‟ble Apex Court in "Sarabjeet Singh Mokha vs. The
District Magistrate, Jabalpur and others", SCC Online SC 1019, has
held as under:
"....Article 22(5) reflects a keen awareness of the framers of
the Constitution that preventive detention leads to the detention
of a person without trial and hence, it incorporates procedural
safeguards which mandate an immediacy in terms of time. The
significance of Article 22 is that the representation which has
been submitted by the detenu must be disposed of at an early
date. The communication of the grounds of detention, as soon
as may be, and the affording of the earliest opportunity to
submit a representation against the order of detention will have
no constitutional significance unless the detaining authority
deals with the representation and communicates its decision
with expedition."
10. In view of the aforesaid discussions and without adverting to the
other grounds raised in this petition, the same is allowed. The impugned
detention Order No. 32/PSA of 2022 dated 04.11.2022 passed by the
District Magistrate, Ramban, is quashed. The detenu- Leaqat Ali S/o Ali
Mohd. R/o Dumki Sumber Tehsil and District Ramban is directed to be
released from the custody forthwith provided he is not required in any
other case.
11. Record of detention be returned to learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
Jammu:
5.10.2023
Michal Sharma
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
