Jammu & Kashmir High Court - Srinagar Bench

Mohammad Ashraf Wani vs Unknown on 1 August, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                              HCP No. 127/2024
                                                      Reserved on: 26.07.2024
                                                    Pronounced on: 01.08.2024
Mohammad Ashraf Wani
                                                                     ...Petitioner
                                         Through: Mr. T. H. Khawja, Advocate
        v.
UT of J&K and others
                                                               ......Respondents
                                       Through: Mr. Jehangir Ahmad Dar, GA.
CORAM:
              Hon'ble Mr. Justice Javed Iqbal Wani, Judge
                              JUDGEMENT

1. Under challenge in the instant petition is detention order bearing no.

23/DMB/PSA/2024 dated 12.04.2024, (hereinafter for short the 'impugned order') passed against the detenu, namely, Mohammad Ashraf Wani, by Respondent 2-District Magistrate, Baramulla (for brevity detaining authority), under and in terms of provisions of the Jammu & Kashmir Public Safety Act, 1978 (for short the 'Act').

2. It is being stated in the petition that the detenu is a law abiding and peace-loving citizen and has never been involved in any activity prejudicial either to public order or the Security of the UT/Country. The detenu is stated to have been implicated falsely in case FIR Nos. 71/2005, 117/2016, 28/2018, 06/2022 and 128/2023 wherein the detenu came to be enlarged on bail by the competent court of law, which fact is not mentioned in the grounds of detention and the said fact has not been taken note of by the detaining authority showing complete unawareness thereof suggesting non-application of mind by the detaining authority.

It is being further stated that the detenu had not been provided copies of the relevant material, like copy of dossier, copy of FIRs, statements recorded under Section 161, 164-A Cr.P.C., referred to in the grounds of detention, material, if any, collected during the course of investigation, thus, depriving him to file an effective representation

against his detention and the said failure is stated to have infringed the constitutional rights of the detenu guaranteed under Article 22 (5) of the Constitution of India.

3. On the other hand, respondents, in their reply affidavit filed to the petition herein have resisted and controverted the contentions raised by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

It is being next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order.

Respondents in nutshell have stated that all statutory, constitutional provisions have been complied with while detaining the detenu.

Heard learned counsel for the parties, perused the record and considered the matter.

4. Before adverting to the issues involved in the petition, it would be appropriate and advantageous to refer to the judgement of the Apex Court passed in case titled as 'Rekha v. State of Tamil Nadu reported in 2011 (5) SCC 244' being relevant and germane herein, wherein at paragraphs 29, 33 & 35 it has been observed and laid down as under:

"29. Preventive detention is, by nature, repugnant to democratic ideas and an apathema to the rule of law. No such law exists in the USA and in England (except during wartime). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guarantee by Article 21 of the Constitution of India which was won after long,

arduous and historic struggles. It follow, therefore, that if the ordinary law of the land (the Penal Code and other penal statues) can deal with a situation, recourse to a preventive detention law will be illegal."

"33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Article 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to"

"35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion" (vide State of Maharashtra v. Bhaurao Punjabrao Gawande, SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion mandatory and vital."

A further reference to the judgement of the Apex court passed in case titled as Abdul Wahab Sheikh v. B. K. Jha reported in 1987(2) SCC 22 would also be relevant wherein at paragraph 5, following has been noticed and observed as under:

"... We only desire to add that in a Habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been

complied with before the date of hearing and therefore, the detention should be upheld. The procedural requirements are the only safeguard available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirement are therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional right guaranteed to him in that regard."

5. Coming back to the case in hand and as has been noticed in the preceding paragraphs, it is revealed that there is no denial to the fact by the respondents in the reply affidavit that the detenu stands released in the FIRs. Even the order of detention, grounds of detention, so much so the record does not anywhere reveal or suggest that the detaining authority was aware about the said fact while directing detention of the detenu.

The law enjoins upon the detaining authority to be alive to all the facts and circumstances of the case and on the application of mind to all those facts and circumstances to draw subjective satisfaction that the detention of the detenu becomes imperative. In case all the facts are not brought to the notice of the detaining authority or that the detaining authority though being aware of all the facts and then without considering the same, it derives subjective satisfaction to detain a person, the same would amounts to non-application of mind on its part.

The failure on the part of the detaining authority to show awareness with regard to the bail granted to the detenu in the FIRs relied upon by it per se amounts to non-application of mind on its part, vitiates the order of detention on this ground alone.

A reference here in this regard to the judgment of the Apex Court passed in case titled as 'Anant Sakharam v. State of Maharashtra and another', reported in AIR 1987 SC 137 would be relevant and germane wherein it is noticed and observed as under:

"....We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that

the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention."

6. In view of the aforesaid position obtaining in the matter, the other grounds urged in the petition need not to be dealt with as same essentially pale into insignificance.

7. Viewed thus, in the context of what has been observed, considered and analyzed in the preceding paragraphs, instant petition is allowed, as a consequence whereof, the impugned order of detention bearing No. 23/DMB/PSA/2024 dated 12.04.2024 is quashed, with a direction to the respondents including the Jail Superintendent concerned to release the detenu forthwith from preventive custody unless required in any other case.

8. Disposed of. No orders as to costs.

9. The detention record produced by counsel for the respondents for perusal of the Court is returned to him in the open Court.

(Javed Iqbal Wani) Judge Srinagar 01.08.2024 TASADUQ SAB: