Jammu & Kashmir High Court - Srinagar Bench
Reyaz Ahmad Dar vs State Of J&K; And Others on 5 September, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No. 11
Regular list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No. 166/2017
Date of Order: 05.09.2017
Reyaz Ahmad Dar
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Mir Shafaqat Hussain, Advocate
For respondent(s): Mr M. A. Beigh, AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. By dint of order No. DMB/PSA/10 dated 19th of May, 2017, passed by the respondent No.2-District Magistrate, Budgam, in exercise of powers vested in him under clause (1) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 ( for short Act of 1978), one Reyaz Ahmad Dar @ Rukana S/o Ghulam Rasool Dar R/o Panzan Chadoora, Budgam, has been detained and lodged in Central Jail, Kot Bhalwal, Jammu. The respondent No.2, endorsed a copy of the order of detention dated 19th of May, 2017 to the Home Department for approval as envisaged under sub section (4) of Section (8) of the Act of 1978 and the Government, in purported exercise of powers, conferred by section (8) of the Act of 1978, accorded approval to the order of detention aforementioned vide No. Home/PB-V/1093 of 2017 dated 25th of May, 2017 and the order of detention was executed on 20th of May, 2017 HCP No. 166/2017 Page 1 of 11
2. Counter affidavit has been filed, wherein it is stated that the grounds of detention have been served on the detenue and he has been told that he has a right to make the representation to the detaining authority as well as the Government if he so desires.
3. Heard and considered.
4. The order of detention has been challenged before this Court on various grounds. However, I propose to deal with only two of them which in my opinion cut at the very root of the matter and which , if accepted, would result in the invalidation of the order of detention.
5. The first contention is that the detenue has not been informed that he can make a representation to the detaining authority and he has only been informed that he can make a representation to the Government against the order of his detention, if he so desires. The Execution Report and the receipt of the grounds of detention prepared by ASI Sh. Ghulam Qadir, are a sequel to the fact that the said officer informed the detenue that he can make a representation to the Government against the order of detention, if he so desires. Therefore, on the face of what has been communicated to the detenue by the officer named hereinbefore, it has to be accepted that the detenue has been deprived of a valuable right to make a representation against the order of his detention before the detaining authority and this infraction renders the order of detention liable to be set aside.
6. To substantiate this arguments, the learned counsel for the petitioner has placed explicit reliance on the law laid down by the High Court of Jammu & Kashmir in the order dated 09th June, 2017 passed in the case of Tariq Ahmad Dar versus State of J&K and others ( LPA No. 43/2017, the relevant excerpts of which are reproduced below:
"6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power HCP No. 166/2017 Page 2 of 11 to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the 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 the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non- communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.
7. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order.
8. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly HCP No. 166/2017 Page 3 of 11 clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.
9. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate. Sub- Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such of the particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order. Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19. Revocation of detention orders.-
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8.HCP No. 166/2017 Page 4 of 11
(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where -
(i) the earlier order of detention or its continuance is not legal on account of any technical defect or
(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."
10. Sub-Section (1) clearly indicates that without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may, at any time be revoked or modified by the Government notwithstanding that the order has been made by the Officer mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1) of Section 19 provides is that, apart from the Detaining Authority, the Government is also entitled to revoke or modify the detention order made by the Detaining Authority, who happens to be inter alia a District Magistrate. It also implies that till the approval is granted by the Government under Section 8 (4), the Detaining Authority retains jurisdiction to revoke the detention order in terms of Section 21 of the General Clauses Act, Samvat 1977. The said Section 21 reads as under:-
" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.
Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a HCP No. 166/2017 Page 5 of 11 power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
11. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.
13.The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non- communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.
HCP No. 166/2017 Page 6 of 1114.The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non- communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act.
Ultimately the Supreme Court held as under:-
"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 constitutional 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 fail and stand dismissed."
15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu HCP No. 166/2017 Page 7 of 11 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.
16. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.
17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-
communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as his detention order is concerned.
18. The appeal is allowed. The impugned order is set aside."
7. The judgement cited is lucid, luminous and clear and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he has a right to make a representation to the detaining authority, till such time that the detention is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the HCP No. 166/2017 Page 8 of 11 constitution of India and section 13 of the Act 1978. It is incapable of being taken away and the failure, in providing this information to the detenue has the effect of invalidating the order of detention.
8. The second contention is that in the grounds of detention it is stated that a case FIR No. 216/2013 for offences under Section 302/307 /120-B RPC was registered against the detenue and a charge sheet was laid against him in the competent Court of law. It is further stated that another FIR No. 448/2013 for offence under Section 307 RPC and 7/27 Arms Act was also registered against the detenue at Police Station Budgam, and the detenue was arrested in the case. These activities of the detenue that took place in the year 2013 form the baseline of the order of detention of the detenue. These incidents are stale ones and could not have been invoked in the aid of passing an order of detention against the detenue. These incidents do not appear to have any immediate or proximate connection with the order of the detention of the detenue. These are neither imminent nor very close and near to the date of passing the order of the detention of the detune and to cap it all the detenue having been found involved in the commission of substantive offences he could not have been detained preventatively. The normal law ought to have ruled the roost particularly when the detenue was detained in one of FIRs as stated in the grounds of detention. It is no where stated that he had applied for or was released on bail. Even if he would have been admitted to bail the state could have opposed such an order tooth and nail before a higher forum. The order of detention in such an eventuality is misplaced. A cue can be had in this behalf from the law laid down by the Apex Court of the Country (para 24 sub para (6) ) in the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:-
"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned HCP No. 166/2017 Page 9 of 11 detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows :
"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."
9. The same view has been repeated in reiterated by the Hon'ble Supreme Court (at paragraph 13) in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as under:
"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. 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 the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda"
affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."
HCP No. 166/2017 Page 10 of 1110. In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. DMP/PSA/10 dated 19th of May, 2017, passed by the respondent No.2-District Magistrate, Budgam, is quashed with a further direction to the respondents to release the person of Shri Reyaz Ahmad Dar @ Rukana S/o Ghulam Rasool Dar R/o Panzan Chadoora, Budgam forthwith from the preventive custody, in case he is not involved in any other case.
11. The record relating to the detention of the detenue be returned to the learned Additional Advocate General.
(M. K. Hanjura) Judge Srinagar 05.09.2017 "Manzoor"
HCP No. 166/2017 Page 11 of 11