Jammu & Kashmir High Court
Mohd. Amin vs Union Territory Of J&K And Others on 4 August, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No. 104
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No.51/2022
Reserved on: 20.07.2023.
Pronounced on: 04.08.02023.
Mohd. Amin .....Petitioner(s)
Through: Mr. Shafiq Ahmed Wani, Advocate
Vs
Union Territory of J&K and others ..... Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Order of detention No.19/PSA/2022 dated 25.08.2022 passed by District Magistrate Ramban, whereby he in exercise of powers under Section 8 of the Public Safety Act 1978 has directed petitioner to be detained in Central Jail Kot Bhalwal, with a view to prevent him from acting in any manner which is highly prejudicial to the maintenance of the public order has been challenged by the petitioner in this writ petition.
2. The order of detention has been challenged mainly on the grounds that the respondent No. 2 merely on the basis of report of Sr. Superintendent of Police Ramban without application of mind and without evaluating the allegations alleged against him and without supplying the dossier to him proceeded to pass the impugned order whereby he has been detained and lodged at Central Jail Kot Bhalwal. Allegations leveled 2 WP(Crl) No.51/2022 against him are vague and nothing specific has been stated in the grounds of detention nor compelling reasons have been disclosed and the petitioner on the date of passing of the order of detention was already in the detention of the police since 03.08.2022. Respondent No. 2 had formulated his opinion to detain him on the basis of two FIRs, FIR No. 43/2003 and FIR No. 2/2007 but allegations are totally false and frivolous. He had already been acquitted by the competent Court in the aforesaid FIRs. He further submits that he was not provided with the copy of dossier and other relevant documents which prevented him from making effective representation. The detention of the petitioner is illegal and in violation of the provisions. He was never referred to advisory board. The order of detention has been passed without application of mind.
3. Respondents have filed their reply, in which they have submitted that petitioner has raised disputed questions of facts which cannot be adjudicated upon through the medium of this writ petition and as such the writ petition merits dismissal. It is submitted that the Senior Superintendent of Police, Ramban, vide communication No. CB/DOSSIER/22/11596, dated 23.08.2022, submitted a dossier of illegal activities recommending therein case for detention of the petitioner under the provisions of J&K Public Safety Act, 1978. The dossier has been examined in light of the legal provisions and circumstances related to the case, details of which have been furnished by the District Police, Ramban. The petitioner was reportedly involved in anti-national/anti-social activities, creating law and order problems in Banihal Tehsil. He was a surrendered militant, who had 3 WP(Crl) No.51/2022 joined militancy in December, 1999 and illegally crossed the border via Sabzian (Poonch) for arms training in Pakistan from where he went to Afghanistan (Rishkoor place) for further training. After training, he infiltrated into India in March 2022 through Maind, Poonch Border and reached Srinagar and remained active commander with code name "Khalid". Later on, in 2003, he was arrested by Lakhanpur police with some arms and ammunition and Hawala money and case FIR No.43/2003 under Sections 121-A/121/123/120-B/8/25 Act, Explosive Substance Act was registered at P/S Lakhanpur. He was lodged in Kot Bhalwal Jail, Jammu till 2006. Thereafter, he was arrested by Special Cell of Delhi Police and a case FIR No.02/2007 under Sections 121, 121-A, 122, 123, 120-B IPC, 16, 18, 20 ULA (P) Act was registered at P/S Special Cell Delhi against him, where he was charge sheeted and after trial, he was convicted and remained in Tihar Jail from 2007 to 2014. His brother, namely Mohd. Akhter Wani, is lodged in Lucknow Jail since 2008 and was sentenced to life imprisonment. His name also exists in the list of arrested/released militants as well as over ground workers (OGW) in the record of Police Station, Banihal. His activities are very harmful and highly prejudicial for the peace, prosperity, tranquility, integrity and security of the UT of J&K, particularly in Banihal. He instigates and provokes the general masses particularly youth of Banihal and adjoining areas against the government and creates/disturbs peaceful atmosphere in Banihal area and he was also trying to indulge youths in militancy related activities. The criminal activities committed by him are of serious nature, which involve 4 WP(Crl) No.51/2022 spreading enmity between the people of different religions/regions and these shall be detrimental to the regional harmony as well as security of the UT of Jammu and Kashmir, particularly in Banihal area.
4. The respondents in their reply submit that there is no violation of any provision of law. All material was supplied to the petitioner on which the detaining authority while passing the detention orders. The petitioner was also informed about his right of making representation against the said detention order.
5. Order of detention has been passed by the District Magistrate, Ramban on 25.08.2022, whereby petitioner has been detained under Section 8 of the Public Safety Act and lodged in Central Jail Kot Bhalwal with a view to prevent him from acting in any manner which is prejudicial to the maintenance of public order. District Magistrate vide separate order dated 25.08.2022 has informed the petitioner that he may take a representation before the Government against the said order if he so desires. The order of detention has been issued vide No.DMR/599-604 dated 25.08.2022, whereas, he has been informed about making of his representation to the Government vide No.DMR/587-90 dated 25.08.2022. It is clear from the dispatch number of the order of detention and intimation regarding making representation has been given before the order of detention was issued. Intimation regarding making of representation was to be in the order of detention. The record, as is evident from the dispatch numbers, makes it clear that detention order was issued after the intimation was given to the petitioner. It makes it doubtful as to whether such notice 5 WP(Crl) No.51/2022 was given to the petitioner or not. The petitioner in the memo of petition has taken up the ground that he has not been provided with the dossier and other relevant documents. For making an effective and meaningful representation the petitioner was required to be provided with the record so that he could make an effective representation. Record which has been produced by the respondent for the perusal of the Court does not contain any evidence regarding any record having been provided to the petitioner. The record is silent about the fact as to whether he was provided with the required record on which detaining authority has relied while passing the order impugned. This makes it clear that by withholding the relevant record the petitioner has been deprived of making any representation to the competent authority, thus, violated the petitioner's right, as provided under Article 22 (5) of the Constitution of India.
6. While passing the order of detention it was duty of the detaining authority to have informed the petitioner of his right of making representation against the said detention order to the detaining authority. The order of detention is silent about the same nor it is stated by the respondents that he was informed about his right to make representation to the detaining authority. It is pertinent to mention here that prior to the Governments approval of detention order, which is to be done within 12 days of detention order, in terms of Section 8(4) of the J&K Public Safety Act, 1978 ( for short " Act of 1978" ) detaining authority also has the power to revoke detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Svt. 1977, which has been saved by virtue 6 WP(Crl) No.51/2022 of Section 19 of the Act of 1978. Till the Government's approval to detention order is granted, since the detaining authority had the power to revoke the detention order, a representation could have been made to the detaining authority for revoking detention order. It was incumbent upon detaining authority to have informed detenu that he could also make a representation to detaining authority, if he so desired. Since the detaining authority did not communicate to detenu that such a representation could be made to the detaining authority, this in itself amounted to infraction of provision of Section 13 of the Act of 1978 read with Article 22 (5) of the Constitution of India. Reliance in this regard is placed on State of Maharashtra & Ors. Vs Santosh Shankar Acharya, (2000) 7 SCC 463. In the present case, the detaining authority did not inform the detenu that the detenu independent of his right to file representation against his detention to the Government, has also right to submit a representation to detaining authority till detention was considered by Government and accorded approval thereto. Detaining authority has, in essence, violated constitutional and statutory rights of detenu, guaranteed under Article 22(5) of the constitution of India and Section 13 of the Act of 1978 which vitiates impugned detention.
7. The Hon'ble Division Bench while considering a similar issue in Tariq Ahmed Dar vs. State of Jammu and Kashmir & Ors, 2017(11) SLJ,665 (HC) and relying on the judgment of the constitutional bench in Kamlesh Kumar Ishwar Dass Patel vs Union of India, (995) 4 Supreme Court Cases 51, has held as under:
7 WP(Crl) No.51/2022
"...This being the position, it goes without saying that even under the Maharashtra Act, a detenu 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 detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitution right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fil and stand dismissed".
"From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the detaining authority, till the detention order is not approved by the government, would constitute an infraction of a valuable constitutional right guaranteed under article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non- communication would invalidate the order of detention".
8. In view of the settled position of law as stated above which squarely applies to the present case, the detention of the detenu is unjustified. 8 WP(Crl) No.51/2022 Therefore, for the reasons stated above, the petition is allowed and the impugned order of detention is quashed. The petitioner shall be set at liberty in case not involved or required in any other case.
( Vinod Chatterji Koul ) Judge Jammu 04.08.2023 Shammi