Jammu & Kashmir High Court - Srinagar Bench
Umar Fayaz Mir vs Union Territory Of J&K And Another on 29 December, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(Crl) No.26/2021
Reserved on: 26.11.2021
Pronounced on: 29 .12.2021
Umar Fayaz Mir
.........Petitioner(s)
Through: Mr. T. H. Khawaja, Advocate
Versus
Union Territory of J&K and another
............Respondent(s)
Through: Mr. Hakim Aman Ali, Dy. AG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. The Order No.02/DMB/PSA of 2021 dated 08.01.2021, issued by District Magistrate, Bandipora, placing detenu, namely, Umar Fayaz Mir S/o Fayaz Ahmad Mir R/o Nadihal Mir Mohalla Tehsil and District Bandipora, under preventive detention in terms of J&K Public Safety Act, so as to prevent him from acting in any manner prejudicial to maintenance of public order and directing his lodgement in Central Jail, Srinagar, has been challenged in this petition through his father, on the following grounds:
i) that impugned detention of detenu is manifestly fraud on his rights of detenu as having been passed in flagrant violation of rights guaranteed to him by Article 21 and 22 of the Constitution of India and in utter disregard to provisions of J&K Public Safety Act, 1978.
ii) that grounds of detention on the basis whereof detenu has been detained are vague, cryptic, indefinite and lack specific character and under such circumstances no representation could be filed by detenu against order of detention.
iii) that order of detention or the record does not disclose compelling reasons, which are supposed to be based on material on record, prompting detaining authority to pass detention order notwithstanding the fact that detenu was in custody for alleged involvement in a substantive offence. Since the very basis on which detention could be ordered under such circumstances do not exist, the order of detention is rendered bad.
iv) that not even an iota of material on which impugned detention Page 1 WP(Crl) No.26/2021 order and alleged grounds of detention are supposed to be founded, including copy of FIRs, dossier referred to in the grounds of detention have been furnished or made available to detenu by respondents. Non-supply of such material has prevented detenu from making an effective representation against detention in exercise of fundamental rights guaranteed to detenu by Article 22 of the Constitution of India.
v) that detenu is not well-read person. He does not, at all, understand English language. Grounds of detention are in English language and have not been explained or communicated to detenu in the language understood by him making it impossible for detenu to prefer any representation against the detention order.
2. Learned counsel for respondents has filed counter affidavit as well as produced the detention record. It is submitted that there is no illegality in the order of detention, as it was necessary to place detenu under preventive detention so as to prevent him from acting in any manner prejudicial to the maintenance of public order. He has been detained validly by virtue of order of detention passed by District Magistrate, Bandipora. All the material relied upon by detaining authority was communicated to detenu in the language he understands. Thus, all statutory requirements and constitutional guarantees have been fulfilled and complied with by detaining authority and that detaining authority after arriving at subjective satisfaction has passed order of detention.
3. I have heard learned counsel for parties and considered the matter.
4. The main ground taken in this writ petition is that detenu was not in a position to make an effective and meaningful representation either to detaining authority or to the Government against his detention because he was not provided the material relied upon and referred to by detaining authority while passing detention order and, therefore, there is violation of provisions of Article 22 (5) of the Constitution of India and in absence of such material detenu was prevented from making an effective representation.
5. To evaluate the submissions made by learned counsel for parties vis- à-vis furnishing of material to detenu that has been relied upon by detaining authority while passing impugned detention order, it would be appropriate to go through the detention record, produced by counsel for respondents. Detention record contains, amongst others, Execution Report, Receipt of Detention Papers, detention order, communication addressed to detenu, dossier, Movement Order, copies of FIRs, copies of statement of witnesses Page 2 WP(Crl) No.26/2021 which reveals that only five leaves have been furnished to detenu. Execution report, on its perusal, reveals that only five leaves have been given to the detenu and, therefore, the material relied upon by detaining authority while passing impugned detention order has not been provided to detenu, thereby infringing his constitutional and statutory rights.
6. Bare reading of impugned detention order reveals that Superintendent of Police, Bandipora, vide his letter no.Lgl/PSA-03/2020/ 35191-96 dated 23.12.2020, produced dossier, material record, and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention attribute various incidents and instances to detenu and mention that detenu has been instigating/provoking the youth of Bandipora District for participation in stone pelting and his activities are prejudicial to the maintenance of public order. Detention record also mentions lodgment of four FIRs against detenu. The material, relied upon by detaining authority, thus, acquires significance in the facts and circumstances of the case. It needs no stress, that 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 him. It is only after detenu has all the material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions concerning the activities of detenu are baseless and misplaced. If detenu is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. Failure on the part of detaining authority to supply the material relied at the time of making the detention order to detenu, renders detention order illegal and unsustainable. While saying so, I draw the support from the law laid down in Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & others, 2009 (I) S.L.J 219.
7. In the present case, it is submission of respondents that there are very serious allegations against detenu as he has always been in the lead role in Page 3 WP(Crl) No.26/2021 antisocial and antinational activities, which are prejudicial to maintenance of public order. And in this connection, the criminal cases are already going on against detenu under various provisions of Penal Laws and if he is found guilty, he would 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."
8. In a case of preventive detention, no offence is proved, nor any charge is formulated and justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, when a person's greatest of human freedoms, i.e., personal liberty, is deprived, the laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, has to be mandatorily made. Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors, (1975) 3 SCC 198; Union of India v. Paul Manickam & anr, (2003) 8 SCC 342; Rajinder Arora v. Union of India (2006) 4 SCC 796; Powanammal v. State of Tamil Nadu and anr., AIR 1999 SC 618; G. M. Shah v. State of J&K, (1980) 1 SCC 132; Talib Hussain v. State of J&K & others, 2009 (II) SLJ 849; Nissar Ahmad Bhat v. State & ors, 2014 (III) SLJ 1047; Shahmali v. State & others, 2010 (1) SLJ 56; Dilawar Magray v. State Page 4 WP(Crl) No.26/2021 of J&K & ors, 2010 (II) SLJ 696; and Sajad Ahmad Khan v. State & others, 2010 (II) SLJ 743.
9. 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. [See: - V. Shantha v. State of Telangana and others, AIR 2017 SC 2625] 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 or security of the State, 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 the cases of Rekha's and V. Shantha (supra) as also in Sama Aruna v. State of Telengana AIR 2017 SC 2662.
10. Based on the above discussion, the instant petition is disposed of and Detention Order No.02/DMB/PSA of 2021 dated 08.01.2021, issued against Umar Fayaz Mir S/o Fayaz Ahmad Mir R/o Nadihal Mir Mohalla Tehsil and District Bandipora, by District Magistrate, Bandipora, is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of.
(Vinod Chatterji Koul) Judge Srinagar 29.12.2021 (Qazi Amjad Secy.) Whether approved for reporting? Yes/No Page 5 WP(Crl) No.26/2021