Imran Ahmed vs The Union Territory Of Jammu & Kashmir
2024 Latest Caselaw 186 j&K

Jammu & Kashmir High Court

Imran Ahmed vs The Union Territory Of Jammu & Kashmir on 20 February, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                            Serial No. 01


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
Case:-    WP(Crl) No. 49/2023
          CM No. 3061/2023

Imran Ahmed, Aged 32 years
S/o Late Shabir Ahmed
R/o Rajdhani, Tehsil Thanamandi
District Rajouri (J&K)
Presently lodged in District Jail, Dhangri
Rajouri
Through his mother Raj Begum
W/o Shabir Ahmed.
                                                                 .....Petitioners

                       Through: Mr. Muzaffar Iqbal Khan, Advocate.

                 Vs

1. The Union Territory of Jammu & Kashmir,
   through Principal Secretary (Home), Civil
   Secretariat, Jammu.
2. The District Magistrate, Rajouri.
3. The Superintendent, Distt. Jail, Rajouri.
                                                             ..... Respondent(s)

                       Through: Mr. Bhanu Jasrotia, GA.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

(20.02.2024)

(Oral)

01. The petitioner in the instant petition has challenged detention order

No.DMR/INDEX/04 of 2023 dated 29.04.2023 (for short "the impugned

detention order") passed by the respondent 2-District Magistrate, Rajouri under

section 8 of the Jammu & Kashmir Public Safety Act, 1988 (for short "the Act

of 1988") seeking setting aside of the same, inter alia, on the grounds that the

petitioner was not provided the material relied upon by the detaining authority

depriving him of making a representation against his detention, thus, violating

his constitutional rights enshrined in Article 22(5) of the Constitution of India

and that the impugned detention order has been passed on the basis of a dossier

furnished to respondent 2 by the sponsoring agency being Sr. Superintendent of

Police, Rajouri and the detaining authority without application of mind and

evaluating the allegations contained in the said dossier passed the impugned

detention order as the FIRs mentioned in the said dossier and grounds of

detention stand disposed of by the hon'ble Court and besides having no

proximate link or connection with the impugned detention order and that the

detenue was never informed that he can make a representation against his

detention.

02. Respondents have filed reply to the petition, opposing the same inter-

alia on the grounds that the petitioner came to be detained being a notorious

bovine smuggler involved in a number of criminal activities contained in various

FIRs, necessitating his detention under the provisions of the Act of 1988 and

that as per the execution report, the relevant documents i.e. copy of detention

order, copy of grounds of detention came to be provided to the detenue against

proper receipt and the same came to be read over to the detenue in English and

explained in Urdu/English which he understood and as a token thereof affixed

his signatures thereon and that the detenue also came to be informed that he can

make a representation against his detention and that the detenue came to be

detained by the respondent 2 after proper application of mind and on the basis of

dossier provided by Sr. Superintendent of Police, Rajouri.

Heard learned counsel for the parties and perused the record.

03. Before proceeding to address to the grounds urged in the petition, it

would be appropriate to refer to the position of law laid down by the Apex Court

pertaining to the preventive detention.

04. A reference in this regard to the judgment of the Apex Court passed in

case titled as "Rahmatullah Vs State of Bihar and others" reported in 1979(4)

SCC 559 would be relevant herein, wherein at para 4 following came to be

provided and held:-

"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub- Article (5) of Article 22 reads:

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.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenue is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen

guaranteed by Article 19 of the Constitution. The non- consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub- Article (5) of Article 22 of the Constitution."

05. Keeping in mind the aforesaid position of law and reverting back to

the case in hand and while considering the first ground of challenge urged by the

petitioner that the respondents did not provide him the material relied upon for

detaining him disabled him from making an effective representation against his

detention, is concerned, examination of the detention record produced by the

counsel for the respondents reveals that the detenue stands furnished 04 leaves

being detention order 01 leaf and 03 leaves of grounds of detention furnished to

the petitioner by the Assistant Superintendent, District Jail, Rajouri against

receipt claimed to have been executed by the detenue. A deeper examination of

the said receipt reveals that the detenue has affixed his signature as "Imran

Ahmed" above his name reflected in the said receipt, however, at the bottom of

the said receipt ironically the following is hand written:-

"Record x copy of warrant of detention. Signature Irfan Ahmed Mir Irfan Ahmed Mir S/o Shabir Ahmed Mir R/o Rajdhani 7889354300"

As is manifest from above, the receipt in question bears purportedly

the signature of the detenue as Imran Ahmed above his named typed in the said

receipt and at the bottom of the said receipt the hand written aforesaid detail is

provided, which some Irfan Ahmed Mir has signed.

Besides, the detention record also reveals that the sponsoring agency

has referred to the multiple FIRs in the dossier, which are referred in the

grounds of detention as well, and the detaining authority seemingly has

considered the said dossier in isolation without there being the copies of the said

FIRs or the record of investigation or the final report, thereof and consequently

appears to have assumed subjective satisfaction for detaining the detenue

thereon alone.

As has been noticed in the preceding paras, the said material

comprising of dossier including the FIRs referred therein indisputably have not

been furnished to the detenue, as the detenue, as per the stand taken by the

respondents as well as according to the record only 04 leaves consisting of the

grounds of detention and the detention order have been furnished to the detenue

and, as such, it cannot, but be said that the detenue has been rendered incapable

of making an effective representation against his detention in absence of the said

material and therefore, there is patent non-compliance of the statutory provisions

of the Act of 1988 as also the constitutional mandate enshrined in Article 22(5)

of the Constitution, thus, vitiating the impugned order of detention.

06. The next ground urged by the detenue that the FIRs referred in the

grounds of detention having been relied upon by the detaining authority

contained in the dossier are not pending but infact stand disposed of prior to the

detention of the detenue, which plea of the petitioner has not been denied or

disputed by the respondents in their reply, thus, leaving no option for this Court

except to draw an adverse inference against the respondents, rendering the

impugned order untenable in law.

07. Having regard to the aforesaid position, the rest of the grounds urged

by the petitioner against the detention order need not to be addressed to and the

same pale into insignificance.

08. Viewed thus, for the foregoing reasons, the petition is allowed and the

impugned detention Order No. DMR/INDEX/04 of 2023 dated 29.04.2023 is

quashed with a direction to the concerned Jail Superintendent to release the

detenue from the preventive detention forthwith unless the detenue is required in

any other case.

09. Disposed of.

10. The detention record produced by the learned counsel for the

respondents is returned back in the open Court.

(JAVED IQBAL WANI) JUDGE JAMMU 20.02.2024 Shivalee Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No