Jammu & Kashmir High Court - Srinagar Bench
Union Of India (1982) 1 Scc 27 vs Hcp No.405/2018 Page 3 Of 5 on 5 April, 2019
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
.....
HCP no. 405/2018 Date of order: 05.04.2019 Wajid Ahmad Kaloo v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner (s): Mr N. A. Ronga, Advocate For respondent(s): Mr Irfan Andleeb, Dy.AG vice Mr Javed Iqbal, Sr.AAG Whether approved for reporting? Yes/No
1. Deputy Commissioner, Srinagar, by Order no.DMS/PSA/35/2018 dated 11th October 2018, has placed one Wajid Ahmad Kaloo son of Abdul Ahad Kaloo resident of Rampora, Chattabal, Srinagar (for brevity "detenu") under preventive detention, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. It is this order of which petitioner is aggrieved and beseeches quashment thereof on the grounds urged in present petition.
2. Albeit reasonable opportunities granted to respondents, they have not filed reply.
However, the detention record has been produced by respondents. During course of advancement of arguments by learned counsel for parties, counter has been produced by learned counsel for respondents, which, at request, is taken on record.
3. I have heard learned counsel for parties and considered the matter.
4. Learned counsel for petitioner has stated that detenu is a businessman by profession and is having his own shop at Fruit Mandi, Parimpora, Srinagar. The detenu is said to have been arrested in connection with cases FIR nos. 279/2017 and 236/2018 on 18th September 2018 and subsequently placed under preventive detention vide impugned detention order. Learned counsel for petitioner has also stated that detaining authority has not followed Constitutional and Statutory procedural safeguards as mandated under Article 22(5) of the Constitution of India. Vague allegations are said to have been levelled against detenu. Detenu is said to have not been furnished with grounds of detention and other connected material which has swayed the mind of detaining authority.
5. Per contra, learned counsel for respondents has insisted that all the technical requirements had been complied with, more particularly of J&K Public Safety Act, 1978, which required that earliest opportunity of making a representation be provided to detenu.
6. The detention record has been produced by learned counsel for respondents. I have gone through the whole record. It does not show or reflect anywhere that detenu has been furnished the material relied upon by detaining authority or even reflect HCP no.405/2018 Page 1 of 5 endorsement overleaf detention order to indicate that detention order, grounds of detention and connected material was supplied to detenu at the time of execution of detention. By this, the rights guaranteed to petitioner under Article 22(5) of the Constitution of India and Section 13 of J&K Public Safety Act, 1978, have been infringed and violated. Having said so, impugned detention order is liable to be quashed.
7. It is pertinent to mention here that reverence of life is insegragably concomitant with the dignity of a human being, who is basically divine, not obsequious. A human personality is indued with potential infinitude and it blossoms when dignity is sustained. Sustenance of such dignity has to be the superlative concern of every sensitive soul. Essence of dignity can never be treated as a momentary spark of light or, for that matter, "a brief candle", or "a hollow bubble". The spark of life gets more splendiferous when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of "creative intelligence". When a dent is created in the reputation, humanism is paralysed. Reverence for the nobility of a human being has to be the cornerstone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of precautionary incarceration. Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, "the reverence of life offers me my fundamental principle on morality". The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands.
8. Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order of three months, or any other period(s), is a punishment of that particular period's incarceration. What difference is it to detenu whether his immurement is called preventive or punitive? Besides, in cases of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence. Preventive detention is every so often described as a 'jurisdiction of suspicion', Detaining authority passes detention order on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic HCP no.405/2018 Page 2 of 5 ideas and an anathema to rule of law.
9. Preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the detaining authority. In the said milieu, it is of utmost importance that whatever procedural safeguards are guaranteed to detenu by the Constitution, preventive detention law should be strictly followed. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned, a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. Significance of a lawyer to enable a person to appropriately defend himself has been sumptuously explicated by the Supreme Court in A.S. Mohd. Rafi v. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali v. State of Assam, JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932) "Even the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory. In State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 this Supreme Court observed:
"...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. HCP no.405/2018 Page 3 of 5 Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54."
10. The Constitution Bench of the Supreme Court in M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212, observed:
"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."
11. The Nine Judge Constitution Bench of the Supreme Court in I.R. Coelho (dead) By LRs. v. State of T.N., (2007) 2 SCC 1, observed:
"It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & "transcendental", & inalienable, and primordial".
12. In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in the lead role in nefarious activities, which are hazardous to the sovereignty and integrity of the country and has been creating law and order problem in the area of Kupwara and its adjacent areas and in order to accomplish antisocial agency. And in this connection, various criminal cases are already going on against detenu under various provisions of Ranbir Penal Code and if he is found guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262, while emphasising need to adhere to procedural safeguards, observed:
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion", 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."
13. It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process, is the dictum of the Supreme Court in V. HCP no.405/2018 Page 4 of 5 Shantha v. State of Telangana and others, AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time-consuming in 'curbing the evil he spreads', is illegal and that detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha's case and V. Shantha v. State of Telangana case (supra) and Sama Aruna v. State of Telengana AIR 2017 SC 2662.
14. Based on the above discussion, the petition is disposed of and detention order no.DMS/PSA/35/2018 dated 11th October 2018, issued by Deputy Commissioner, Srinagar, is quashed. As a corollary, respondents are directed to release detenu, if not required in any other case. Disposed of.
15. Detention record be returned to learned counsel for respondents.
(Tashi Rabstan) Judge Srinagar 05.04.2019 Ajaz Ahmad, PS AJAZ AHMAD 2019.04.15 12.56 I attest to the accuracy and integrity of this document HCP no.405/2018 Page 5 of 5