Jammu & Kashmir High Court
Amjad Khan vs State And Others on 19 March, 2020
Equivalent citations: AIRONLINE 2020 J AND K 286
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
...
WP(Crl) 71/2019
CM No.239/2020
Reserved on: 05.03.2020
Pronounced on:19.03.2020
Amjad Khan
....... Petitioner(s)
Through: Mr. Madan Lal, Advocate.
Versus
State and others
......Respondent(s)
Through: Mr. Aseem Sawhney, AAG
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGEMENT
1. The challenge in this petition is thrown to Order No. 09/PSA of 2019 dated 08.08.2019 passed by the District Magistrate, Poonch whereby the petitioner (hereinafter referred to as „the detenu‟) has been detained under Section 8(b) of the J&K Public Safety Act, 1978 for a period of three months on the grounds detailed in the grounds of detention simultaneously served upon the detenu. The impugned detention order has been assailed inter alia on the following grounds:-
(i) That the registration of single FIR against the detenu that too on a false and concocted grounds cannot be made the basis to put the detenu under preventive detention.
(ii) That the involvement of the detenu in single incident which is reflected in the FIR No.209 of 2019 cannot constitute threat to the maintenance of public order and may at the most amount to law and order problem for which the substantive law of the land has to take its course.2 WP(Crl) No. 71/2019
(iii) That the safeguards envisaged under the J&K Public Safety Act, 1978 and the Constitution of India have not been followed and therefore, the impugned order of detention is vitiated.
2. The respondent No.2 has filed the reply affidavit placing the reliance on the judgment of the Hon‟ble Supreme Court of India in the case of Haradhan Saha V. State of West Bengal reported in (1975) 3 SCC
198. It is submitted that the purpose of preventive detention is only to detain a person so as to prevent him from acting in any manner prejudicial to the maintenance of public order. Whereas the substantive law is a punitive action where an accused if held guilty is to be convicted and sentenced. He, thus, states that the drawing of parallel between the prosecution in a Court of law and preventive detention is illogical, for, the two operate to achieve two different objectives. It is pleaded that the detaining authority passed the detention order after deriving subjective satisfaction on the basis of the material placed before it by the Police and other agencies of the State. The detenu was handed over the order of detention, the grounds of detention and all other material relied upon by the detaining authority. The matter was then placed before the Advisory Board which opined with regard to the necessity of the putting the detenu in preventive detention. Based on the opinion of the Advisory Board, the Government Home/PB-V/2100 of 2019 dated 01.10.2019 confirmed the order of detention of the detenu. The respondents in their affidavit have also referred to the activities of the detenu including raising of 3 WP(Crl) No. 71/2019 anti-India and pro-freedom slogans viz. "Hum Kya Chachtya Hain Azadi". It is stated that the detenu not only indulged in the activities calculated to disturb even tempo of life, but, he instigated others also to indulge in stone pelting on the forces deployed in the area for maintaining peace and order. It is, thus, urged that for the activities of the detenu along with others, an FIR No.209/2019 under Section 124-A/336/353/427 RPC was registered at Police Station, Surankote. In nutshell, the respondents have pleaded that the activities of the detenu were such and his remaining at large would have disturbed the even tempo of life thereby seriously prejudicing public order. It is on these grounds, the respondents have sought to defend the detention order.
3. Heard learned counsel for the parties and perused the record.
4. Admittedly, the District Magistrate, Poonch has invoked its powers conferred by Section 8(b) of the J&K Public Safety Act, 1978 to put the detenu in preventive detention with a view to prevent him from indulging in activities prejudicial to the maintenance of public order. The detenu has been detained initially for a period of three months and lodged in Central Jail, Kote Bhalwal, Jammu. The basis of detention of the detenu, as is apparent from the impugned order of detention, is the dossier in respect of the detenu submitted by Senior Superintendent of Police, Poonch vide his Order No. CS/PSA/2019/5130-31 dated 07.08.2019. The activities detailed in the dossier have been reflected by the detaining authority in the grounds of detention. From the perusal of the grounds of detention, it would 4 WP(Crl) No. 71/2019 transpire that provocation to slap the detention order on the detenu is an incident that took place on 06.08.2019 in Village Buffliaz wherein people of the area instigated by the detenu held a protest demonstration against the decision of the Govt. of India to abrogate Articles 370 and 35-A of the Constitution of India. In the protest, it is alleged, the detenu along with one Mohd Tanvir raised pro-freedom slogans. The gathering was also instigated by the detenu to indulge in stone pelting on the forces deployed in the area for maintaining peace and order. There is further allegation in the grounds of detention that the detenu along with his associate Mohd Tanvir also tried to snatch the weapon from the Sentry deployed at naka Buffliaz but due to the alertness of the latter, the detenu could not achieve his nefarious designs. With regard to the aforesaid incident, an FIR No.209/2019 was also registered at Police Station Surankote. It is on the basis of the aforesaid information supplied by the Senior Superintendent of Police, Poonch, the detaining authority arrived at the satisfaction that the activities of the detenu are calculated to disturb the even tempo of life and, therefore, it was necessary to put the detenu in preventive custody with a view to prevent him from indulging in such activities in future.
5. From the perusal of the grounds of detention, one thing that clearly comes out is that though the detaining authority has placed reliance on the registration of the FIR 209/2009 against the detenu, but, has not shown its awareness as to whether the detenu was ever arrested in the aforesaid FIR and if arrested whether he was in custody at the time of 5 WP(Crl) No. 71/2019 issuance of detention order or had been released on bail by the competent Court of law. This non-application of mind on the part of the detaining authority would itself vitiate the order of detention. If the detenu was arrested in FIR No.209/2019 and was in custody, then it was incumbent upon the detaining authority to spell out compelling reasons to issue an order of detention under the Public Safety Act. This omission on the part of the detaining authority clearly speaks of the non-application of mind, which itself is a ground for quashing the detention of the detenu.
6. From the execution report available in the detention record produced by the respondents, it would further transpire that at the time of execution of the detention order, the detenu was only supplied with the following documents:-
(a) The detention order : One leaf
(b) Notice of detention to the detenu : One leaf
(c) The grounds of detention : One leaf
(d) Other related documents : One leaf
Total : Four leafs
7. It is, thus, clear that two important documents relied upon by the detaining authority to derive subjective satisfaction, i.e., dossier supplied by the SSP, Poonch and copy of the FIR 209/2019 have not been supplied to the detenu. Failure on the part of the detaining authority to ensure supply of these documents relied upon in the grounds of detention has affected the constitutional right of the detenu 6 WP(Crl) No. 71/2019 to make an effective representation against his detention. On this ground also the order of detention is liable to be quashed.
8. In Dharmendra Suganchand Chelawat & anr v. Union of India, AIR 1990 SC 1196, the Supreme Court while surveying law on detentions in detail has held that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis whereof it may be satisfied that (a) the detenu is likely to be released from the custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
9. It is trite and needs no emphasis, that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenu. If the detenu is not supplied the relevant material, he will not be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material relied 7 WP(Crl) No. 71/2019 at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. (See- Thahira Haris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & ors, 2009 (I) S.L.J 219.
10.Since this Court for the reasons given above has come to the conclusion that the order of detention impugned is vitiated for non- application of mind as also for not supplying the requisite material relied upon by the detaining authority to the detenu to enable him to make effective representation, it would not be necessary to consider other grounds of challenge urged by the detenu to assail the order of detention.
11.For the foregoing reasons I find merit in this petition and the same is accordingly allowed. The impugned order of detention bearing No.09- PSA of 2019 dated 08.08.2019 issued by the District Magistrate, Poonch is hereby quashed. The respondents are directed to release the detenu from the custody forthwith unless he is required in some other case.
12.Disposed of as above along with connected CM(s).
13.Record produced by learned counsel for the respondents is returned to him.
(Sanjeev Kumar) Judge Jammu 19.03.2020 Madan Verma, PS Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. MADAN LAL VERMA 2020.03.19 13:40 I attest to the accuracy and integrity of this document