Mohd. Ayaz Alias Shantoo vs The Union Territory Of Jammu
2024 Latest Caselaw 33 j&K

Jammu & Kashmir High Court

Mohd. Ayaz Alias Shantoo vs The Union Territory Of Jammu on 31 January, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

      HIGH COURT OF JAMMU, KASHMIR AND LADAKH
                      AT JAMMU
     HCP No. 29/2023                               Reserved on : 30.12.2023
                                                   Pronounced on: 31.01.2024

            Mohd. Ayaz alias Shantoo,                  .....Appellant(s)/Petitioner(s)
            Age 37 years S/o. Mohd. Iqbal
            R/o. H. No. 160, Gujjar
            Nagar, Jammu, at present
            lodged in Central Jail, Kot
            Bhalwal, Jammu, through his
            father Mohd. Iqbal, Age 63
            years, S/o. Late Sh. Dil
            Mohammad, R/o. H. No. 160,
            Gujjar Nagar, Jammu.
                            Through: Mr. S. S. Ahmed, Advocate
                                     Mr. Zulkernain Choudhary, Advocate
                                     Ms. Supriya Chouhan, Advocate
                                     Mr. Raul Raina, Advocate
                       vs
     1.     The Union Territory of Jammu
            and Kashmir th.its Additional
            Chief Secretary/Financial
            Commissioner (Home), Civil
            Secretariat, Jammu-180001.
     2.     The District Magistrate, Jammu-
            180001.
     3.     The Senior Superintendent of
            Police, Jammu
     4.     The Superintendent, Kot
            Bhalwal, Jammu.


                            Through: Mr. Pawan Dev Singh, Dy.AG

     Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                       JUDGMENT

1. The present petition has been filed by the petitioner through his father

seeking quashing of the order of detention bearing No. 06 of 2023 dated

10.05.2023 issued by respondent No. 2 under Section 8(1)(a) of the Public

Safety Act, 1978 (for short "the Act") on the following grounds:

(a) That the order of detention was passed on 10.05.2023 but the

same was implemented on 07.06.2023 when the petitioner

surrendered before the SHO Police Station, Peer Mitha, Jammu

in presence of the respectable persons of the area including the

Municipal Corporator, Gujjar Nagar, Jammu and Advocate

Varun.

(b) That earlier in the year, 2017 also, the petitioner was

recommended for detention under the Act but later, the District

Administration decided not to detain the petitioner and the

petitioner was allowed to face the trials in the criminal cases, in

which he had been booked for substantive offences.

(c) That the order of detention of the petitioner is illegal as most of

the documents forming part of the dossier/grounds of detention

provided to the petitioner were not legible.

(d) That the petitioner had submitted the representation against the

order of detention but the same was not decided by the

respondents.

(e) That the petitioner was acquitted in FIR No. 63/2017 of Police

Station, Nowabad and FIR No. 38/2022 of Police Station, Peer

Mitha, Jammu but the respondent No. 3 did not provide the

requisite information to the Detaining Authority i.e. respondent

No. 2 and as such, it has resulted into miscarriage of justice.

2. Counter affidavit has been filed by the respondent No. 2, stating therein

that the order of detention has been issued on the basis of activities of the

petitioner, which were found to be prejudicial to the maintenance of public

order, so as to prevent the petitioner from indulging again in such activities.

It is further stated that all the statutory safeguards enshrined in Article

22(5) of the Constitution of India as well as provisions contained in the Act

were meticulously followed, while issuing as well as executing the order of

detention. It is further averred that the petitioner is a history-sheeter of

Police Station, Peer Mitha, Jammu and a dreaded criminal, desperate

character, who habitually indulges in acts of violence such as attempt to

murder, assault, carrying illegal arm/ammunition, extortion etc. It is

further stated that the petitioner was found to be involved in 12 different

cases and the ordinary criminal law when failed to mend him and his

tendency to disturb the public order, the Detaining Authority was

compelled to detain him under the Act. The acquittal, discharge or bail in

one or more of the cases, has no effect on the subjective satisfaction of the

Detaining Authority.

3. Mr. S. S. Ahmed, learned counsel for the petitioner has laid much stress

that the judgments of acquittal recorded in favour of the petitioner in FIR

No. 63/2017 of Police Station, Nowabad and case FIR No. 38/2022 of

Police Station, Peer Mitha, were not brought to the notice of the Detaining

Authority by the respondent No. 3 and as such, it prevented the Detaining

Authority from deriving the subjective satisfaction while issuing the order

of detention. He further argued that despite the fact that the representation

was made to the respondents, the same was not decided by them resulting

into violation of the constitutional rights of the petitioner guaranteed under

Article 22(5) of the Constitution of India as well as provisions contained in

the Act.

4. Per contra, Mr. Pawan Dev Singh, learned Dy.AG, appearing for the

respondents, has vehemently argued that if the legible copies of the

material relied upon by the Detaining Authority while issuing the order of

detention were not provided to the petitioner, he was expected to approach

the respondents for providing the legible copies. He laid much stress that

the ground raised by the petitioner in respect of illegible copies is, in fact,

an afterthought as there is no such whisper made in the representation made

by the petitioner prior to the filing of the present petition. He further

submitted that all the constitutional as well as statutory safeguards provided

under Article 22(5) of the Constitution of India and the Act respectively

have been followed while issuing and executing the order of detention.

5. Heard and perused the record submitted by the respondents.

6. The first contention raised by the petitioner is that the legible copies of the

documents relied upon by the detaining authority while issuing the order of

detention were not provided to him. The perusal of representation filed by

the father of the petitioner reveals that no such ground was raised by the

petitioner in his representation and rather, the mode and manner in which

the representation has been made, thereby mentioning the details of the FIR

including the allegations, establishes that all the documents which were

relied upon by the detaining authority and provided to the petitioner, were

legible. As such, there is no force in the contention raised by the petitioner

and the same is rejected.

7. The second contention raised by the petitioner is that the representation

made against the order of detention to the respondents has not been

considered by them. The perusal of Record produced by the respondents

would reveal that the representation submitted by the father of the

petitioner was forwarded to Special DG Police, CID J&K by the

respondent No.1 vide communication dated 22.06.2023 but the same was

not decided either by the respondent No. 1 or respondent No.2. The

respondent No.1 has confirmed the order of detention vide order dated

24.07.2023, after obtaining the opinion from the Advisory Board when

representation was already forwarded by the respondent No.1to Special DG

Police, CID J&K vide communication dated by 22.06.2023. Non

consideration of representation is violative of the constitutional as well as

the statutory rights of the petitioner. In Sarabjeet Singh Mokha v. District

Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, the Hon'ble Apex

Court of India has held as under:

"50. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu "as soon as may be" and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State

Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution."

(emphasis added) The order of detention, as such, is not sustainable on this ground only.

8. Further, this Court finds that the grounds of detention prepared by the

respondent No. 2 are the verbatim reproduction of the contents of the

dossier submitted by the respondent No.3 to the respondent No.2. The

detaining authority is required to apply its mind independently in respect of

the material placed before it so as to derive subjective satisfaction that it

has become necessary to detain the petitioner. Reliance is placed upon the

decision of Apex Court in case titled 'Jai Singh v. State of J & K,

reported in (1985) 1 SCC 561' and the relevant portion is reproduced as

under:

"-------First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafterword for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

9. Further, in 'Rajesh Vashdev Adnani v. State of Maharashtra, (2005)

8SCC 390', the Hon'ble Apex Court quashed the order of detention, as the

detention order was the verbatim reproduction of the proposal of the

sponsoring authority. On this ground also, the order of detention is not

sustainable and the same is required to be quashed.

10. In view of above, the order of detention bearing No. 06 of 2023 dated

10.05.2023 issued by respondent No. 2 under section 8(1)(a) of the Public

Safety Act, 1978 is quashed. The petitioner be released forthwith, if not

required in any other case.

11. The record be returned to the learned Counsel for the respondents.

(RAJNESH OSWAL) JUDGE

Jammu 31.01.2024 Rakesh PS Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No