Jammu & Kashmir High Court - Srinagar Bench
Abdu Qayoom Pandith vs State Of J&K; And Others on 1 March, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Serial No.01
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.370/2017
Date of decision:01.03.2018
Abdul Qayoom Pandith v. State of J&K and ors.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Petitioner(s): Mr. Musavir Ahmad Mir, Adv
For the Respondent(s): Mr. Asif Maqbool, GA, vice Mr. M. A. Rathore, AAG.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) Pursuant to impugned detention order No.13-DMK/PSA of 2017
dated 20.10.2017, Ab. Qayoom Pandit (hereinafter referred to as the detenue) has been taken into preventive custody so as to deter him from acting in any manner prejudicial to the maintenance of public order. By now detenue is in preventive custody for more than four months. By the instant petition, petitioner seeks quashment of the detention order on various grounds.
2) First contention of the learned counsel for the petitioner is that the detenue has been informed to make representation to the government but has not been informed that he can make a representation before the detaining authority, which is an infringement of a valuable right.
3) Perusal of the records reveal that vide communication No.DMK/PSA/2017/255-59 dated 20.10.2017, issued by District HCP No.370/2017 Page 1 of 6 Magistrate, Kupwara, detenue has been informed to make a presentation to the Government, so clearly he has not been asked to make a representation before the District Magistrate (Detaining Authority). The position has already settled i.e. when there is such a breach of right, the order of detention becomes unsustainable.
4) In the judgment rendered by the Hon‟ble Apex Court in "State of Maharashtra and others v. Santosh Shankar Acharya" (AIR 2000 SC 2504), it has been held that "detenue will have a right to make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government and consequently non- communication of the fact to the detenue that he has a right to make representation to the Detaining Authority, would constitute an infraction of the valuable Constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such failure would make the order of detention invalid."
5) The second contention as raised is that the material forming base for the order of detention has not been supplied to the detenue. The detention record as produced by learned GA is suggestive of the fact that total 30 leaves which include copy of detention warrant (2 leaves), grounds of detention (2 leaves), dossier (3 leaves), copy of FIR (6 leaves), seizure memo and statements of witnesses (16 leaves) have been supplied to the detenue.
6) The record reveals that the copies of FIR No.342/2016 registered on 26.08.2016 and FIR No.351/2016 registered on 02.09.2016 have been shown to have been supplied to the detenue but in the order of detention, HCP No.370/2017 Page 2 of 6 there is reference to FIR No.276/2017 P/S Handwara. Copy of that FIR has not been supplied to the detenue. In fact, there is no case registered as FIR No.276/2017 P/S Handwara against the detenue. It finds mention only in the order of detention not in the grounds of detention order the dossier. The position is further exposed by the counter affidavit as filed by the detaining authority as there is no reference to FIR 276/2017. How it has been mentioned in the order of detention impugned suggests absolute non- application of mind. Perhaps it has been mentioned simply to justify the detention order.
7) The activities alleged against the detenue pertain to the year 2016 when two cases have been registered, one on 26.08.2016 and 02.09.2016. for a gap of more than one year, no activities prejudicial to the maintenance of public order are attributed to the detenue. For the alleged activities pertaining to the year 2016, that too prior to 2nd September,2016, detenue has been taken into preventive custody in the month of October, 2017. The period of detention for the activities prejudicial to maintenance of public order is maximum one year. When for one year i.e. from 2 nd September, 2016 till 20th October, 2017, detenue has not indulged in any prejudicial activity, how could he be taken into preventive custody, clearly shows that there is lack of application of mind.
8) Preventive detention, in effect, is an invasion to personal liberty which infringed the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders HCP No.370/2017 Page 3 of 6 the order of detention unsustainable. The Hon‟ble Supreme Court in catena of judgments has made it clear as to what is the value of the „constitutional safeguard‟ and as to what is the value of right to liberty guaranteed under Article 21 of the Constitution of India. It shall be advantageous to quote as to what Hon‟ble Apex Court has held from time to time. In the case of "Rekha v. State of Tamil Nadu through Secretary to Government and another" reported in (2011) 5 SCC 244, it has been held as under:
"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."
9) In the said judgment, observation of the Hon‟ble Apex Court made in the case of "Abdul Latif Abdul Wahab Sheikh b. B. K. Jha" (1987) 2 SCC 22, has been quoted as under:
".....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard."
10) The grounds of detention is the replica of the dossier with interplay of words here and there, which also exhibits non-application of mind, in the process deriving of subjective satisfaction has become a causality. The HCP No.370/2017 Page 4 of 6 Hon‟ble Apex Court in the judgment rendered in the case of "Jai Singh and ors vs. State of J&K" (AIR 1985 SC 764) has held 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". Thereafter word for word the police dossier is repeated and the 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 proof of non-application of mind. The liberty of a subject is a serious matter and is not to HCP No.370/2017 Page 5 of 6 be trifled with in this casual, indifferent and routine manner."
11) Applying the aforesaid settled legal position to the facts and circumstances of the present case, there is no hesitation in observing that there is non-application of mind on the part of detaining authority in passing the impugned detention order.
12) For the reasons and the law stated hereinabove, the petition is allowed and order No.13-DMK/PSA of 2017 dated 20.10.2017, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case
13) Detention records, as produced, be returned to the learned counsel for the respondents.
(Mohammad Yaqoob Mir) Judge Srinagar 01.03.2018 "Bhat Altaf, PS"
HCP No.370/2017 Page 6 of 6