Jammu & Kashmir High Court

Tajinder Singh @ Jinda Age 29 Years vs Union Territory Of Jammu & Kashmir on 19 February, 2024

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                             HCP No.48/2023

                                            Reserved on : 30.01.2024
                                            Pronounced on : 19.02.2024


Tajinder Singh @ Jinda Age 29 years
S/o Darshan Singh
R/o Ward No.02, Simbal Camp, Mira Sahib, Jammu             .... Petitioner(s)

                  Through: Mr. Jagpaul Singh, Advocate
       Versus


1.    Union Territory of Jammu & Kashmir
      Through Commissioner-cum-Secretary to the
      Government Home Department, Civil Secretariat, Jammu

2.    District Magistrate, Jammu

3.    Senior Superintendent of Police, Jammu

4.    Superintendent, Central Jail, Kot- Bhalwal,
      Jammu.                                             ......Respondent(s)

                  Through:     Mr. Pawan Dev Singh, Dy. AG

CORAM:      HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE



                              JUDGMENT

1. The petitioner is aggrieved of and has challenged through his mother,

his order of detention made by the District Magistrate, Jammu

["Detaining Authority"] vide his No.01 of 2023 dated 10.02.2023,

whereby the petitioner has been placed under preventive detention

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

the maintenance of public order.

2. The detention has been ordered by the Detaining Authority on the

basis of Grounds of Detention dated 10.02.2023 served upon the

petitioner. The basis of detention, as is apparent from the grounds of

detention is registration of 12 different FIRs against the petitioner in

various Police Stations of Jammu. In short, the petitioner is found to

be a notorious, hardcore and habitual criminal and also a drug peddler.

He is found to have formed a gang of criminals to carry out his

nefarious designs in an organized manner. The Detaining Authority

has, on the basis of material placed before him by the police, arrived

at a satisfaction that allowing the petitioner at large is detrimental to

the maintenance of public order and, therefore, it is imperative to

detain him in the exercise of powers conferred upon her under Section

8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978 ["the Act"].

3. The impugned order of detention is assailed by the petitioner on

multiple grounds. However, the grounds which were pressed and

emphasized by Mr. Jagpaul Singh, learned counsel appearing for the

petitioner, can be put as under:-

i) That on the selfsame grounds the petitioner was earlier detained

under the Act in the year 2016 vide Detention Order No.05 of

2016 dated 18.04.2016. The said order was subsequently revoked

and the petitioner was placed under preventive detention by

issuing a fresh order bearing No.07 of PSA of 2017 dated

07.06.2017. The said detention order was quashed by this Court

vide order dated 08.02.2018 passed in HCP No.46/2017. The

Detaining Authority had relied upon all the FIRs registered till the

year 2017 against the petitioner in various Police Stations to base

its subjective satisfaction. It is argued that the aforesaid FIRs

which had earlier been relied upon in the detention order issued in

the year 2017 could not have been made the basis of detention

ordered by the Detaining Authority vide order impugned. It is,

thus, argued that the impugned order is vitiated on this count.

ii) That against his detention, the petitioner through her mother,

Daljeet Kour, made a representation to the Secretary to

Government, Department of Home, which, as per the stand of the

respondents and the record produced, has not been considered and

disposed of under any intimation to the petitioner. Right of the

petitioner to make a representation and to have the same

considered and disposed of by the Competent Authority within

reasonable time has been violated. The impugned order of

detention is, thus, vitiated.

4. Despite several opportunities granted, including last and final

opportunity, the respondents have chosen not to contest this petition

by filing any reply affidavit of the Detaining Authority. The

respondents through their counsel have, however, produced the record

of detention to justify the detention of the petitioner ordered by the

Detaining Authority.

5. Heard learned counsel for the parties and perused the material on

record including the original record produced by Mr. Pawan Dev

Singh, Dy. AG.

6. Indisputably, in the year 2017 as well the petitioner was placed under

preventive detention by the District Magistrate, Jammu vide order

No.07/PSA of 2017 dated 07.06.2017, with a view to prevent him

from acting in any manner prejudicial to the maintenance of public

order. The aforesaid order was passed by the Detaining Authority on

the basis of its subjective satisfaction derived from the dossier

presented by the police. The grounds of detention clearly indicated

that the basis of drawing subjective satisfaction by the Detaining

Authority to put the petitioner in detention in the year 2017 was

registration of multiple FIRs in various Police Stations of Jammu

district. All the FIRs registered upto the date of issuance of the order

of detention in the year 2017 were taken note of and strongly relied

upon to issue detention order against the petitioner. The aforesaid

detention order was assailed by the petitioner before this Court in

HCP No.46/2017, which was allowed by a Bench of this Court vide

order dated 08.02.2018 and the detention order was quashed.

7. In the instant case the Detaining Authority, in addition to the FIRs

registered from time to time upto 2017, has also taken note of two

subsequent FIRs i.e. FIR No.60/2019 and 5/2013 to slap another

detention order on the petitioner. From a reading of the grounds of

detention, it is not discernible as to whether two subsequent FIRs

alone have persuaded the Detaining Authority to issue a fresh

detention order against the petitioner or it is the cumulative

consideration of all the FIRs including FIRs registered against the

petitioner upto 2017, which has persuaded the Detaining Authority to

arrive at a subjective satisfaction that allowing the petitioner to remain

at large would be detrimental to the maintenance of public order and,

therefore, it is imperative to place him under preventive detention.

Otherwise also, it is trite law that the grounds of detention, which

were base for the detention order quashed by a competent Court of

law earlier, cannot be relied upon again for passing a fresh order of

detention. In Chhagan Bhagwan Kahar v. N.L.Kalna and others, AIR

1989 SC 1234, the Hon'ble Supreme Court while dealing with similar

issue held thus:-

"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order. Once the Court strikes down an earlier order by issuing rule, it nullifies the entire order."

8. It is, thus, well settled that when a detention order is quashed by the

Court, the grounds of such order should not be taken into

consideration either as a whole or in part even along with fresh

grounds of detention for drawing the requisite subjective satisfaction

to pass a fresh order. That apart, it would not be possible for this

Court to segregate the grounds of detention of the quashed detention

order and the fresh grounds of detention without getting into the mind

of the Detaining Authority. In such situation, the court is left with no

option but to presume that what persuaded the Detaining Authority to

draw subjective satisfaction with respect to detention of the detenue is

the cumulative consideration of all grounds old as well as fresh.

9. So far as the plea of learned counsel for the petitioner that failure of

the Government to consider representation within reasonable time and

convey the decision of such representation to the detenue breaches his

fundamental right guaranteed to him under Article 22(5) of the

Constitution of India, suffice it to say that from a perusal of the record

produced by Mr. Pawan Dev Singh, learned Dy.AG, it clearly

transpires that the representation made by the petitioner has been

received by the Government but the same has not been considered by

it or referred to the Advisory Board for consideration.

10. Undoubtedly, the fundamental right of the petitioner vested by Article

22(5) of the Constitution of India has been breached. Article 22(5) of

the Constitution of India reads thus:-

"When any person is detained in pursuance 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 shall afford him the earliest opportunity of making a representation against the order."

11. Implicit in the right of the detenue to be communicated the grounds of

detention and afforded an earliest opportunity of making a

representation against his detention, is the right of the detenue to have

his representation considered with reasonable despatch.

12. In Sarabjeet Singh Mokha v. District Magistrate, Jabalpur and others,

2021 SCC OnLine SC 1019, Hon'ble the Supreme Court has held

thus:-

"22................ 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."

13. A Constitution Bench of the Hon'ble Supreme Court in Jayanarayan

Sukul v. State of West Bengal, 1970(1) SCC 219 had authoritatively

settled the legal position on the point long back. It is, thus, beyond the

pale of discussion that in terms of Article 22(5) of the Constitution of

India, the detenue does not have only right to make a representation

against his detention but has a right to have his representation

considered and disposed of at the earliest. Coupled with this is a

further right of the detenue to be conveyed/informed about the

decision taken on his representation.

14. In the instant case, as is rightly contended by Mr. Jagpaul Singh, the

representation of the petitioner has not been considered by the

competent authority at all. This failure of the respondents to consider