Jammu & Kashmir High Court

Mohd. Azam Shah vs Union Territory Of J&K & Ors on 21 October, 2023

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

      HCP No.10/2023
                                                     Reserved on : 09.10.2023
                                                  Pronounced on : 21.10.2023

      Mohd. Azam Shah                                           .... Petitioner(s)

                             Through:-   Mr. Muzaffar Iqbal Khan, Advocate

                       V/s

      Union Territory of J&K & ors.                           .....Respondent(s)

                             Through:-   Mr. Bhanu Jasrotia, GA

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                               JUDGMENT

01. This petition has been preferred by Mohd. Azam Shah, the

detenu, through his wife Massarat Begum seeking quashing of order of

detention No.DMR/INDEX/11 of 2023 dated 17.05.2023 passed by the

District Magistrate, Rajouri, whereby the detenu has been detained

under section 8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978

with a view to prevent him from acting in any manner prejudicial to the

maintenance of public order.

02. The petitioner submits that the detenu is working as Class-IV

employee in Government Hospital Nowshera and remained as a law

abiding citizen fully and completely devoted to his duties and there is a

family dispute between the detenu and his step brothers regarding

partition of the immoveable ancestral property which led to lodging of

number of false FIRs in Police Station Rajouri. These complaints were

lodged from both sides and equal number of FIRs were registered

against the brothers of the detenu and out of these FIRs almost all of

them were closed as not proved but in two FIRs, charge sheet was

presented. The respondents arbitrarily passed the order of detention

No.DMR/INDEX/11 of 2023 dated 17.05.2023 and the petitioner was

taken into custody without informing the family members.

03. The impugned detention order has been assailed by the detenu

on the grounds that; (i) all the material relied upon by the detaining

authority has not been supplied to the detenu while passing the order of

detention, thus, has prevented him from making an effective

representation to the Government or Detaining Authority; (ii) the order

of detention has not been provided to the detenu in the language he

understands and this has resulted in serious consequences; (iii) there is

total non-application of mind by the Detaining Authority as the

Detaining Authority has not considered the fact that almost in all the

FIRs, investigation stands closed; (iv) the detention of the detenu is on

the basis of old FIR which has no proximate link or connection with the

impugned order of detention and (v) the Detaining Authority has not

formulated any opinion to detain the detenu and the grounds of

detention are verbatim copy of the dossier supplied by the Senior

Superintendent of Police, Rajouri.

04. The respondents have filed the counter affidavit as well as

produced the detention record. They submit that the acts of the detenu

were prejudicial to the maintenance of public order and safety/security

of lives and properties of the citizens. The detenu was informed that he

can make a representation to the Government and was supplied all the

material relied upon by the Detaining Authority while passing the

detention order and the same has been passed after considering all the

material put forth by the Senior Superintendent of Police, Rajouri.

05. It is also submitted that in compliance to the District

Magistrate's order, the warrant was, accordingly, executed by the

Executing Officer-SI Ab. Qayoom of Police Station, Rajouri, who has

read over and explained the warrant and grounds of detention to the

detenu in the language, he understands and the detenu was also

informed of his right to make a representation to the Detaining

Authority as well as the Government against his detention. The detenu

has been provided all the material relied upon by the Detaining

Authority along with translated copies of the same were provided to

him.

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

07. While perusing the detention record, first ground raised by

the detenu appears to be valid as the detenu has not been provided all

the material relied upon by the Detaining Authority in order to enable

him to make an effective representation.

08. One of the most precious right as guaranteed under the

Constitution of India is personal liberty. No one can be denied of his

right to life and personal liberty except in accordance with procedure

established by law. Though, this personal liberty may be curtailed when

person faces a criminal charge or is convicted of an offence sentenced

to imprisonment. The Constitution, however, by adding Article 22(5)

have incorporated detention of a person without any formal charge and

trial and without such person being held guilty of an offence and

sentenced by a competent court. This is to keep the society safe from

such activities that are likely to deprive large people of their right to life

and personal liberty. The justification of such detention is suspicion or

reasonability which requires action to be taken to prevent apprehended

objectionable activities, Article 22(5) of the Constitution provides for

the same.

09. Article-22(5) of the Constitution of India provides that

specific protections to under trials and detainees in India. Article-22(5)

of the Constitution of India reads as under:-

"When any person is detained in pursuant 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 afford him an earliest opportunity of making a representation against the order, therefore, it casts a duty upon the Detaining Authority to communicate to the detenu the grounds on which the order is made and a corresponding right arising in him of making such representation against his detention."

10. In Ram Krishan Bhardwaj vs The State Of Delhi And

Others reported as AIR 1953 SC 318 while interpreting Article-22(5)

of the Constitution of India, it was observed that furnishing of grounds

of detention means material sufficient to enable the detenu to make an

effective representation. Failure by the Detaining Authority to supply

material relied upon at the time of passing the detention order renders

the detention order unsustainable in law.

11. Reliance is also placed on Thahira Haris etc. etc. Vs.

Government of Karnataka and others, reported as AIR 2009 Supreme

Court 2184, has held as under:

"27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone.

28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

12. Thus, the Detaining Authority is required to furnish to the

detenu the grounds of detention, all the documents referred in the

grounds of detention and all the material which the Detaining Authority

has considered while framing its subjective satisfaction. Police report of

the dossier is also to be provided. Record reveals that all the material

has not been provided to the detenu. The execution report reveals that

only one copy of the warrant of PSA has been received. Thus, it is also

clear from the record that the dossier as well as other documents have

not been provided to the detenu in order to enable him to make an

effective representation to the Government or Detaining Authority, as

such, non-supply of material violates the rights of the detenu under

Article 22(5) of the Constitution of India and would make the order

unsustainable in the eye of law. Similar view has been held by the

Hon'ble Apex Court, in Ibrahim Ahmad Batti v. State of Gujarat,

reported as (1982) 3 SCC 440.

13. It is next argued by learned counsel for the detenu that all the

FIRs are between two brothers i.e., between him and his step brothers and

there is no element of public order involved, is also not without any basis.

It is next argued by the counsel for the detenu that the criminal activities

of the detenu are sufficient to be dealt with under ordinary law of the land,

the detention order becomes unsustainable.

14. It is well settled that if the remedies to deal with the detention

are sufficient under the ordinary laws of the land taking recourse to

preventive detention is contrary to constitutional guarantee and detention

becomes invalid and legally unsustainable.

15. In V. Shantha vs. State of Telangana & ors. reported as AIR

2017 SC 2625, the Hon'ble Supreme Court while quashing the detention

order and observing that if the remedies to deal with the detenu are

sufficient under the ordinary laws of the land, taking recourse to the

provision of preventive detention is contrary to the Constitutional

guarantees whereby the detention order becomes invalid and legally

unsustainable, in para 12 held as under:

"12. The detenu was the owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. FIRs were lodged

against the detenu and others under sections 420, 120-B, 34, IPC and Sections 19, 21 of Seeds Act, 1966. It was alleged that the chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of land for the offence alleged."

16. The grounds of detention reveal that the detenu creates tension

for his neighbours and is also habitual of quarrelling with one and other,

in this regard, number of FIRs registered against him but he has not

desisted from same, thus, it was necessary to detain him. The offences as

alleged in the FIRs are not of the nature that ordinary criminal law cannot

be dealt and the fact that he was admitted to bail in these FIRs is no

ground to detain him under preventive law and, thus, impugned detention

of the detenu is unsustainable under law.

17. Reliance in this regard is placed on the judgment of Hon'ble

Apex Court in Vijay Narain Singh Vs. State of Bihar & ors. reported as

(1984) 3 SCC 14, wherein it has been held as under:-

"32 ......... It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent

criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."

18. In the present case, the ordinary law of land was sufficient to

deal with the situation.

19. The grounds of detention also reveal that the allegations against

the detenu in the grounds of detention with regard to offences also do not

fall under the realm of public order as defined under Section 8(3) of the

Act as there is no allegation against the detenu regarding his activities

effecting public at large. The allegations may amount to law and order

issue but he cannot be held to have disturbed the public order.

20. In view of the aforesaid, this petition is allowed. Accordingly,

order of detention No.DMR/INDEX/11 of 2023 dated 17.05.2023 passed

by the District Magistrate, Rajouri, is quashed. The detenu-Mohd. Azam

Shah S/o Sh. Nisar Hussain R/o Village Fatehpur, Tehsil Rajouri, District