Jammu & Kashmir High Court - Srinagar Bench
Sajjid Zahoor Khan vs U T Of J&K & Anr on 25 August, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 04.08.2023
Pronounced on: 25.08.2023
WP(Crl) No.35/2023
SAJJID ZAHOOR KHAN ...PETITIONER(S)
Through: - Mr. Wajid Haseeb, Advocate.
Vs.
U T OF J&K & ANR. ...RESPONDENT(S)
Through: - Mr. Mohsin S. Qadiri, Sr. AAG
with Ms. Maha Majeed, Advocate.
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged detention order No.DMS/ PSA/01/2023 dated 02.01.2023, issued by District Magistrate, Srinagar- respondent No.2 (for brevity "detaining authority"). In terms of the aforesaid order, Sajjid Zahoor Khan @ Sajid son of Zahoor Ahmad Khan resident of Arifeen Colony, Illahibagh, Srinagar (for short "the detenue") has been placed under preventive detention and lodged in Central Jail, Jammu (Kotbhalwal), in order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order.
2) The petitioner has contended that the detaining authority has issued the impugned detention order mechanically without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been Page |2 contended that the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. It has also been contended that the representation of the petitioner against the impugned order of detention has not been considered.
3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of public order. It is pleaded that whole of the material relied upon by the detaining authority has been furnished to the detenue and the same were read over and explained to him; that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit and that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention but despite that he has not chosen to file any representation. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.
4) I have heard learned counsel for parties and perused the record.
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5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds:
(I) That the detenue's right of making an effective representation against his detention has been violated as whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him.
(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same was not considered rendering the detention order unsustainable in law.
(III) That the detaining authority has relied upon the allegations contained in FIR No.94/2022 of P/S Zakura for offences under Section 341, 392, 506 and 120-B of IPC for indulging in extortion, blackmailing etc. which, if found proved against the detenue, would constitute a criminal act and said criminal act can, by no means, be treated as an act to harm the public order.
6) The first ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as whole of the material, which formed basis of the grounds of detention and the consequent order of detention, has not been furnished to him, appears to have substance. A perusal of the detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (Nil), copies of FIR, statements Page |4 of witnesses and other relevant documents (01 leaf), (total 05 leaves). If we have a look at the grounds of detention, it bears reference to FIR No.94/2022 of P/S Zakura. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner's involvement therein FIR is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only one leaf. Even the copy of the dossier of detention has not been supplied to the petitioner.
7) Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
8) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law.
While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 Page |5 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).
9) The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents.
10) It has been specifically contended by the petitioner that he had made a representation against his detention through his wife, which, seemingly, has been received by the office of District Magistrate, Srinagar, on 28.01.2023. The copy of the representation bears the seal and endorsement of the office of the District Magistrate concerned. The petitioner has specifically pleaded in ground (xi) of his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. A perusal of the detention record reveals that the respondents have received the representation of the petitioner. This is evident from communication dated 26.04.2023, addressed by Deputy Secretary to Government, Home Department, to the Special DIG of Police, CID, J&K. The detention record does not suggest that the said representation has been considered by the Government. The record shows that report regarding representation of the petitioner was called by the Government but there is nothing on record to suggest as to what decision has been taken on the said representation nor Page |6 the decision, if any made, thereof seems to have been conveyed to the petitioner.
11) The non-consideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:-
"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non- compliance of Sub-Article (5) of Article 22 of the Constitution."
12) From the aforesaid legal position on the subject, it is clear that non- consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.
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13) Next it has been contended that hat the detaining authority has relied upon the allegations contained in FIR No.94/2022 of P/S Zakura. which, if found proved against the detenue, would constitute a criminal act and said criminal act cannot be treated as an act to harm the public order.
14) From a perusal of grounds of detention, it clearly transpires that the petitioner has been put under preventive detention primarily for his involvement in FIR No.94/2022. The question that arises for determination is as to whether the allegations contained in the aforesaid FIR, which is made basis of the detention order, even if taken to be true on their face value, would constitute an act which has the potentiality of disturbing the public order. If the answer to the aforesaid question is in affirmative, then the impugned order of detention is sustainable in law or else the same cannot be made basis for passing an order of detention against the petitioner.
15) In the above context, it would be apt to notice some judicial precedents on the subject. This Court has, in the case of Khursheed Ahmad Bhat vs. UT of J&K & Ors (WP(Crl) No.324/2022 decided on 20.09.2022), while drawing a distinction between the expression "law and order" and "public order" has observed as under:
The term "law and order" and "Public order" look deceptively similar but both have different connotations. While former is a continual ongoing term, the latter is more temporal in nature. In the caseof public order, the community or the public at large is affected by aparticular action whereas the act or acts that affect only few individuals maybe a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects „law and order‟ but before it can be said to affect public order, it must affect the community or public at large. The nature of criminal act, the manner in which it is committed and its impact are some of the factors that determine whether a particular act would Page |8 fall within the realm of "public order" or " law and order". What is alleged in the FIR, which is sole basis of putting the detenue under preventive detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basisof preventive detention.
16) The Supreme Court has, in the case of Rekha v. State of T.N, (2011) 5 SCC 244 discussed the nature and scope of preventive detention.
Para Nos. 29 and 30 of the judgment are relevant to the context and the same are reproduced as under:-
29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
17) Again, the Supreme Court in the case of Banka Sneha Sheela v. State of Telangana and ors, (2021) 9 SCC 415, was dealing with a case of preventive detention ordered by the State of Telangana on almost similar grounds. There were as many as five FIRs registered against the detenue therein under Sections 420, 406 and 506 IPC and in all the FIRs the detenue was granted anticipatory bail. The detention was ordered primarily on the ground that remaining at large of the detenue would be detrimental to publicorder. The Supreme Court, while relying upon its earlier judgments, observed as under:-
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14. There can be no doubt that for "public order" to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order" but before it can be said to affect "public order", it must affect the community or the public at large.
15. There can be no doubt that what is alleged in the five FIRs pertain to the realm of "law and order" in that various acts of cheating are ascribed to the detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the detention order would make it clear that the reason for the said order is not any apprehension of widespread public harm, danger or alarm but is only because the detenu was successful in obtaining anticipatory bail/bail from the courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make-believe and totally absent in the facts of the present case.
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19. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of "public order" in that case was because of the expression "in the interests of" which occurs in Articles 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Articles 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression "public order" in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.
18) In the light of the ratio laid down in the afore-noted case, let us now advert to the facts of the present case. In the instant case the allegations in the FIR registered against the petitioner may be a problem of law and order but would not certainly come within the purview of the term "public order‟. There is nothing mentioned in the grounds of detention to demonstrate that the activities of the detenue, on the basis of which the FIR came to be registered against him, had an impact of disturbing even the tempo of life of the community or had the effect of P a g e | 10 affecting the public at large. The offences with which the detenue has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenue, if he is ultimately found guilty of the allegations leveled against him in the FIR. The apprehension of the detaining authority that the remaining of detenue at large would be detrimental to the maintenance of public order, cannot be made basis for placing the detenue under preventive detention. A simple case of extortion etc., without having wider ramifications, cannot be made the basis of issuing the detention order in the name of maintaining the public order. The impugned order is, therefore, not sustainable in law.
19) Viewed thus, the petition is allowed and the impugned order of detention 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.
20) The detention record be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge SRINAGAR 25.08.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No