Jammu & Kashmir High Court
Dalbir Singh vs Ut Of J&K And Others on 28 March, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No. 54/2023
Pronounced on: 28.03.2024
Dalbir Singh .... Petitioner/Appellant(s)
Through:- Mr. Harpeet Singh, Advocate
V/s
UT of J&K and others .....Respondent(s)
Through:- Mr. Amit Gupta, AAG
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. Divisional Commissioner, Jammu has issued Detention Order
No. PITNDPS 13 of 2023 dated 02.05.2023 detaining Dalbir Singh alias
Happy, S/o Baldev Singh, R/o Digiana Camp, Jammu A/p Ward No. 4,
Krishna Colony, Kathua, under Section 3 of the Prevention of Illicit
Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988.
The detention order has been assailed by the detenu in this petition.
02. The order of detention has been challenged by the detenu on the
grounds that: (i) the grounds of detention are vague and non-existence and
the order of detention has been passed without any application of mind;
(ii) all the material relied upon by the Detaining Authority has not been
provided to the detenu; (iii) the detention order has been passed on the
ground that the detenu is involved in FIR Nos. 119/2021, 490/2021 and
37/2023 but he has already been enlarged on bail in these FIRs, this fact
has not been noticed while passing the order of detention; (iv) the
representation of the detenu has not been considered by the respondents
till date which has resulted in infraction of constitutional and statutory
safeguards as provided to him.
03. Mr. Amit Gupta, learned AAG has filed the counter affidavit
and produced the detention record. In their counter affidavit, the
respondents have denied the assertions made in the petition. They further
submitted that the detention order has been passed strictly in accordance
with the law and the petitioner was found in possession of narcotic
substances which has also been confirmed by the report of FSL. The
petitioner has been involved illegally in trade of narcotics and
psychotropic substance. The Detaining Authority after applying his mind
and arriving at its subjective satisfaction has ordered the detention of the
petitioner. All the relevant material relied upon by the Detaining Authority
has been furnished to the petitioner and all the procedural and
constitutional safeguards have also been complied with.
04. Heard learned counsel for the parties at length and also perused
the record.
05. Learned counsel for the detenu has placed a copy of
representation against his detention which was forwarded to the
respondents on 25.05.2023. It is submitted that the representation made by
him has not been considered by the respondents till date. Perusal of the
record reveals that the representation of the detenu was forwarded by the
Detaining Authority to the Government on 01.06.2023 but the same has
not been considered till date which has resulted in infraction of
constitutional and statutory rights, as provided to him.
06. Article-22(5) of the Constitution of India provides 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
petitioner the grounds on which the order is made and a corresponding
right arising in him of making such representation against his
detention."
07. The Hon'ble Supreme Court has time and again held that the
representation submitted by the petitioner must be considered and
disposed of at the earliest. In "Sarabjeet Singh Mokha vs. The District
Magistrate, Jabalpur and others", reported as 2021 SCC Online SC
1019, the Hon'ble Supreme Court has held as under:
"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 immediacy in terms of time. The significance of
Article 22 is that the representation which has been submitted by the
petitioner 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."
08. The right to personal liberty is guaranteed and in order to curtail the
freedom, there must be a cogent cause and strict adherence to the safeguards
prescribed. Record reveals that the detenu had moved a representation which
is on record but the same has not been considered by the Detaining
Authority or the Government. There is violation of the valuable right of the
petitioner under Article 22(5) of the Constitution.
09. The Hon'ble Apex Court in "Ameena Begum vs. State of
Telangana and others", (2023) 9 SCC 587, has observed that "the right of
life and personal liberty is placed on such a high pedestal by this Court that
it has always insisted that whenever there is any deprivation of life or
personal liberty, the authority responsible for such deprivation must satisfy
the court that it has acted in accordance with the law. This is an area where
the court has been most strict and scrupulous in ensuring observance with
the requirements of the law, and even where a requirement of the law is
breached in the slightest measure, the court has not hesitated to strike down
the order of detention or to direct the release of the detenu even though the
detention may have been valid till the breach occurred. The court has always
regarded personal liberty as the most precious possession of mankind and
refused to tolerate illegal detention, regardless of the social cost involved in
the release of a possible renegade."
10. The breach of non-consideration of the representation of the detenu
has, thus, rendered the detention unsustainable.
11. Keeping in view the aforesaid facts and circumstances and also in
view of the law laid down, this petition is allowed. Accordingly, detention
Order No. PITNDPS 13 of 2023 dated 02.05.2023 issued by the Divisional
Commissioner, Jammu, is quashed. The petitioner- Dalbir Singh alias
Happy, S/o Baldev Singh, R/o Digiana Camp, Jammu A/p Ward No. 4,
Krishna Colony, Kathua, is directed to be released from custody forthwith if
he is not otherwise required in any other case.
12. Let the detention record be handed over to learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
JAMMU
RAM MURTI/PS
28.03.2024
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
