Jammu & Kashmir High Court
Mohd. Ashraf vs The Union Territory Of Jammu & ... on 9 October, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.07/2023
Reserved on: 04.10.2023.
Pronounced on: 09.10.2023.
Mohd. Ashraf, Age 50 years ....Petitioner(s)/Appellant(s)
S/O Mohd. Hussain, R/O Village Kakora,
Tehsil Manjakote, District Rajouri
Through his brother
Mohd Farooq, Age 38 years
S/O Mohd. Hussain, R/O Village Kakora,
Tehsil Manjakote, District Rajouri
Through :- Mr. Arshad Majid Malik, Advocate.
V/s
1. The Union Territory of Jammu & Kashmir ....Respondent(s)
Through Financial Commissioner
(Additional Chief Secretary), to Govt.
Home Department, Civil Secretariat, Jammu
2. The District Magistrate, Rajouri
3. The Superintendent,
District Jail, Dhangri, Rajouri.
Through :- Mr. Bhanu Jasrotia, GA
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. In the instant Writ Petition, the petitioner has challenged the detention
order No.DMR/INDEX/12 of 2023 dated 01.06.2023, issued by respondent
No.2, District Magistrate, Rajouri (hereinafter to be referred as "the detaining
authority"), whereby petitioner namely Mohd. Ashraf S/O Mohd Hussain, R/O
Village Kakora, Tehsil Manjakote District Rajouri (for short 'the detenue') has
been placed under preventive detention, in order to prevent him from acting in
any manner prejudicial to the maintenance of public order.
2. It has been 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; that the
statutory procedural safeguards have not been complied with in the instant case
as except the detention order and grounds of detention, nothing has been
provided to the petitioner or any of his other family member, let alone the
translated version of the material forming basis of the grounds of detention, as
such, there has been total non application of mind on the part of the Detaining
Authority while passing the impugned detention order. It has further been
contended that the detaining authority has not mentioned a word with regard to
satisfaction drawn by him in the detention order as to how it has come to the
conclusion of passing of the detention order.
3. It is further contended that the petitioner has been shown involved in 7
FIRs by the respondents, however, the fact of the matter is in one of the FIRs i.e.
FIR No.74/2014, he has earned acquittal on 13.02.2019 from the court of 3rd
Additional Sessions Judge, Jammu and in all other FIRs mentioned in the
grounds of detention by respondent no.2, challans stand already produced before
the different competent courts of law and in all the FIRs the petitioner is on bail
and has been facing trials; that aforementioned facts are conspicuous by their
absence in the grounds of detention, which apparently shows that the detaining
authority is oblivious of the whole facts of the case of the petitioner; that the
preventive detention can never be a substitute for the substantial law; that the
petitioner is only 8th pass and the material supplied i.e. detention order and
grounds of detention documents recorded in English, therefore, he has been
prevented from making effective representation to the Government. Lastly, it is
prayed that the detention order dated 01.06.2023 be quashed as the same has
been passed without giving any consideration to the representation filed by the
petitioner on 03.06.2023 to the Financial Commissioner (ACS), Home, who
while approving the detention order of the petitioner on 06.06.2023, confirmed
the same on 20.06.2023 but has not whispered a word about the said
representation.
4. The respondents, in their counter affidavit, have controverted the
averments made in the petition and submitted that the criminal activities of the
detenue have created terror and law and order problem in the area. The criminal
acts of the detenue include habitual theft/burglary prejudicial to the maintenance
of public order and safety/security of lives and properties of the citizens. The
detenue is involved in seven cases registered at different Police Stations. It is
pleaded that the detention order and grounds of detention were handed over to
the detenue and the same were read over and explained to him in the language he
understands. It has also been contended that the grounds raised by the petitioner
are factually misconceived and legally untenable. The respondents have
produced the detention records in order to support the contentions raised in the
counter affidavit.
5. Heard learned counsel for the parties and perused the detention record.
6. Learned counsel for the petitioner, while seeking quashment of the
impugned order, reiterated various grounds but his main thrust during the course
of arguments was on the following two grounds:
(I) That the grounds of detention are verbatim copy of the dossier,
which shows that the detaining authority has not applied its mind while
formulating the grounds of detention which is a prerequisite for passing
an order of detention.
(II) That except the detention order along with grounds of detention,
nothing has been supplied to the detenue, thus, prevented the detenue
from making an effective representation against his detention.
7. Learned counsel for the respondents has argued that criminal activities of
the detenue have disturbed the peace of the general public. The criminal/anti-
social activities of the detenue have posed a serious threat to the public order is
general and have hurt the sentiments of all communities and his habitual
involvement in burglary/theft cases has put to peril the safety and security of
people's lives and properties. It is further argued that the detenue has not
changed his behavior in spite of a number of FIRs registered against him and he
is bent upon to carry on criminal/anti-social activities. It was further contended
that it was the need of hour to isolate the detenue from the society by way of
detaining him under the J&K Public Safety Act, 1978, so that he might not
repeatedly indulge in such activities. Keeping all these facts in view, the
Detaining Authority, as per the learned counsel for the respondents, was justified
in passing the impugned order of detention as there was every likelihood of the
detenue indulging in similar activities. It has been contended that the grounds of
detention and material on the basis of which the grounds of detention were
formulated, were handed over to the petitioner and he was made to understand
the contents thereof in the language he understands.
8. Personal liberty is one of the most cherished freedoms, perhaps more
important that 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 humanizing 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 this Court cannot go behind the subjective
satisfaction of the detaining authority as has been laid down by Hon'ble Apex
Court in a case tilted Abdul Latif Wahab Sheikh v. 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 be liberty of the subject and the
constitutional rights guaranteed to him in that regard.
10. The detention record, as produced, reveals that the detune was involved
in following 07 cases registered at various Police Stations:-
1) FIR No.74/2017 U/S 376 RPC of PS Bus Stand, Jammu.
2) FIR No.85/2017 U/S 307/353/341/323/147/225-B RPC of PS Thanamandi.
3) FIR No.53/2018 U/S 379 RPC of PS Trikuta Nagar, Jammu.
4) FIR No.129/2019 U/S 380/201 RPC of PS Akhnoor, Jammu.
5) FIR No.94/2020 U/S 382/323/34/201 of PS Akhnoor, Jammu.
6) FIR No.57/2021 U/S 380 IPC of PS Gandhinagar, Jammu.
7) FIR No.286/2022 U/S 380 IPC of PS Gandhinaga, Jammu
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. The detenue herein is said to be 8th pass and as per the
execution report, he has been furnished copies of detention order and grounds of
detention only comprising of five leaves. He has neither been provided with
copies of FIRs nor statement of witnesses. The detenue cannot be said to be
provided with whole of the record which has based his detention, so as to make
an effective representation. The failure on the part of the detaining authority to
supply material renders detention illegal and unsustainable.
12. Though, the detenue has made a representation to the Government on
03.06.2023 but perusal of the detention record would show that while passing
confirmation of detention order in respect of the detenue on 20.06.2023, there is
no mention of any consideration of representation filed by the petitioner.
13. On perusal of the record, it reveals that the detenue has not been
furnished all the documents pursuant to the order impugned in terms of which he
was taken into custody. If we have a look on the grounds of detention and the
Police dossier available in the detention record, it is revealed that the grounds of
detention are almost xerox copy of the dossier with interplay of words here and
there. The dossier and the grounds of detention are in a similar language and the
contents of both these documents appear to be more or less similar. Even the
paragraphs of the two documents match with each other. This clearly exhibits
non-application of mind on the part of Detaining Authority.
14. From what has been discussed above, it is clear that that the Detaining
Authority has, in the instant case, proceeded in a mechanical manner, as a result
of which the deriving of subjective satisfaction has become a causality. While
formulating the grounds of detention, the Detaining Authority has to apply its
own mind. It cannot simply reiterate whatever is written in the police dossier. In
my aforesaid view, I am supported by the judgment of the Hon'ble Supreme
Court in the case of Jai Singh & Ors vs. State of J&K, (AIR 1985 SC 764). In
view of what has been discussed above, the impugned order of detention exhibits
non application of mind on the part of the detaining authority rendering the order
of detention unsustainable in law, having been passed in a routine and
mechanical manner.
15. Next it has been contended that the detenue has been disabled in making
effective representation against the order of detention as translated version of the
material forming basis of grounds of detention has not been furnished to him.
16. A perusal of the detention order reveals that the petitioner is a driver by
profession having middle class pass, which means that he is a semi-literate
person. The receipt stated to have been executed by the petitioner, which form
part of the detention record, reveals that the petitioner has only been provided
with the warrants of detention and grounds of detention. The receipt further
reveals that contents of warrant and grounds of detention have been read over to
the petitioner in the English and explained to the petitioner in Urdu/Kashmiri
language. There is no document on the detention record that would suggest that
the petitioner has been provided translated version of the grounds of detention,
which is in hyper technical language and a semi-illiterate person cannot be
expected to understand the contents of the grounds of detention. Although, as per
the receipt, contents of grounds of detention have been read over and explained
to the petitioner in Urdu/Kashmiri language though the petitioner did not
understand even Kashmiri language, yet the Executing Officer/Official has not
sworn in any affidavit to confirm this fact. The detention record does not contain
any such affidavit.
17. In view of the above, the contention of the petitioner that he was not
made to understand contents of the grounds of detention in the language he
understands, appears to be well founded. Obviously because the petitioner could
not understand the contents of the grounds of detention, he was hampered from
making an effective representation against the order of detention. Thus, a
valuable statutory and constitutional right of the petitioner stands violated in the
instant case, thereby rendering the impugned order of detention vitiated and
unsustainable in law.
18. Viewed thus, the petition is allowed and the impugned order of detention
No. DMR/INDEX/12 of 2023 dated 01.06.2023, passed by respondent No. 2,
District Magistrate, Rajouri, is hereby quashed. The detenue is directed to be
released from the preventive custody forthwith, if not involved in any other case.
19. The record of detention be returned to the learned counsel for the
respondents.
) (MA CHOWDHARY)
Jammu: JUDGE
09.10.2023
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
