Jammu & Kashmir High Court
Harbans Singh vs < on 27 October, 2020
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
S. N. 851
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Video Conference)
Reserved on 15.10.2020
Pronounced on 27.10.2020
WP (Crl.) No. 30/2020
CrlM No. 738/2020
Harbans Singh ...Petitioner/Appellant(s)
Through :- Mr. A. K. Sawhney, Advocate
V/s
<
Union Territory of J&K and ors. .....Respondent(s)
Through :- Mr. Aijaz Lone, Dy. AG.
214
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
(through Video Conference from residence in Jammu)
JUDGMENT
d
1. Through the medium of this Habeas Corpus petition, the petitioner has sought quashing of the detention order bearing No. 02/PSA of 2020 dated 17.07.2020 and has also sought his release from the preventive detention of the respondents. It is stated that the petitioner had gone to the Police Station on 19.07.2020 for recording of his statement in connection with the complaint filed by him on 01.07.2020. From the Police Station he was forcibly taken to Hiranagar Jail and was handed over to the Superintendent of Jail, respondent No. 4 herein. The petitioner has impugned the detention order on the grounds that the grounds of detention, copy of dossier, documents and copies of FIR etc. have not been provided to him and his signatures were taken in Jail on certain papers on the 2 WP (Crl) No. 30/2020 ground that it was a mere formality. It is further stated that the family members of the petitioners had managed to get the copy of the order of detention that has been addressed to one Dayal Singh, who was the father of the petitioner and died on 07.12.1977. It is further stated that the order impugned is a sheer example of non- application of mind on the part of the respondent No. 2. He further submits that the copy of the grounds of detention were managed and arranged by the family members of the petitioner but the same was never supplied to the petitioner. It is further contended that in FIR No. 17/2004, the petitioner stood acquitted by the trial court but the same was never brought to the notice of respondent No. 2. It is further stated that some of the cases referred in the grounds of detention are very old having no proximity with the detention. It is further averred that the petitioner has not been given opportunity or informed of his right to move a representation before the respondent No. 2 as well as before Advisory Committee and the same is grave violation of the safeguards under the Public Safety Act, 1978 (for short the Act). It is further stated that the order impugned has been issued at the behest of some officials and some well connected people as mentioned in paragraph No. 14 of the petition. Precisely, the contention of the petitioner is that the order impugned has been passed at the behest of influential persons just to silence him who is a whistleblower. It is also contended that the Respondent No. 2 has acted as a rubber stamp on the dossier of the Respondent No. 3and the Respondent No. 2 was not competent to order the detention for indefinite period.
2. Reply has been filed by the respondents, in which it has been stated that the petitioner is a notorious criminal and is involved in a number of criminal activities and various FIRs have been lodged against him, therefore, he is the 3 WP (Crl) No. 30/2020 threat to the life and liberty of the public of Samba and detaining the petitioner had become necessity as he was posing great threat to the public peace and tranquility. It is further stated that the detention warrant of the petitioner has been executed in an appropriate way and as per the execution report submitted by the Senior Superintendent of Police (SSP), Samba dated 20.07.2020, it is evident that the detention order, dossier of detention and other related documents have been handed over to the petitioner against proper receipt and also that he has been informed that he can move a representation to the Government as well as to the Detaining Authority against his preventive detention. It is further stated that the Government of Union Territory of J&K, Home Department vide order dated 21.07.2020 has approved the impugned detention order and it is further stated that the whole documents have been handed over to the daughter of the petitioner.
3. Mr. A. K. Sawhney, learned counsel for the petitioner has vehemently argued that mere perusal of the execution report would reveal that neither the grounds of detention nor the FIRs on the basis of which the detention order has been issued by the respondent No. 2, have been supplied to the petitioner and it alone renders the detention order illegal. He further argued that the order of detention reflects the non-application of mind on the part of respondent No. 2.
4. On the contrary, Mr. Ayjaz Lone, learned Deputy Advocate General appearing for the respondents has vehemently argued that the dossier has been served upon the petitioner and as the grounds of detention are the reproduction of the dossier so no prejudice has been caused to the petitioner. Scanned record of detention has also been produced by the respondents to support their reply. 4 WP (Crl) No. 30/2020
5. I have heard learned counsel for the parties and also meticulously perused the record of detention.
6. Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B. K. Jha reported in (1987) 2 SCC 22, it has been held by the Apex Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.
7. The first and the foremost contention of the petitioner is that his signatures were taken in the Jail but no documents were furnished to him. The perusal of the execution receipt contained in the detention record reveals that the detention warrant was executed at Sub Jail, Hiranagar on 19.07.2020. It further demonstrated that the notice of detention has been given to the said detenue (petitioner) and contents of the detention warrant and grounds of detention have been read over to the petitioner in English and explained to him in Dogri language. It further states that the order of detention comprising of 01 leaf, dossier of detention and other related documents having 05 leaves thereby making total of 06 leaves have been handed over to the detenue against proper receipt. So only 06 leaves were handed over to the detenue those included one leaf of detention order and rest 05 leaves are of dossier prepared by the SSP, 5 WP (Crl) No. 30/2020 Samba. The perusal of the dossier submitted by SSP, Samba reveals that it comprises of 06 leaves meaning thereby that even whole of the dossier has not been furnished to the petitioner. Even if, it is assumed for the sake of arguments that whole of the dossier was furnished to the detenue still there is nothing on record to establish that either the grounds of detention or the FIRs those have been relied upon by the detaining authority while preparing the grounds of detention and subsequent passing the detention order, were ever supplied to the petitioner so as to enable him to make a proper and meaningful exercise of his constitutional right of making effective representation under Article 22 (5) of the Constitution of India and section 13 of the JK Public Safety Act 1978. It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply material relied upon by him, while passing the detention order renders it illegal. Reliance is placed upon the decision of Apex Court in Thahira Haris v. Govt. of Karnataka, reported in (2009) 11 SCC 438 and the relevant para is reproduced s under:
"30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the 6 WP (Crl) No. 30/2020 detenu at the earliest opportunity to make effective and meaningful representation against his detention."
8. A perusal of detention order reveals that there is non-application of mind on the part of the detaining authority. In the order of detention there is no whisper as to on which basis the Respondent No. 2 has derived his satisfaction that it has become necessary to detain the petitioner. Even if the order of detention is read in conjunction with grounds of detention, it is evident that the grounds of detention are the verbatim reproduction of dossier prepared by Respondent No. 3. The detaining authority was required to apply its mind independently with regard to the material placed before it so as to derive satisfaction that it has become necessary to detain the petitioner. But the same has been done in the instant case. This too renders the detention order illegal. Reliance is placed upon the decision of Apex Court in case titled Jai Singh v. State of J & K, reported in (1985) 1 SCC 561 and the relevant portion is reproduced s under:
"-------First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into 7 WP (Crl) No. 30/2020 "you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
(Emphasis Supplied)
9. Since the order of detention is required to be quashed on these twin grounds only, so there is no need to consider the other grounds of challenge.
10. In view of the above, this petition is allowed. Detention order No. 02/PSA of 2020 dated 17.07.2020 is quashed. Petitioner (detenue) be set free from the preventive custody provided he is not required in any other case.
(RAJNESH OSWAL) JUDGE JAMMU 27.10.2020 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No RAKESH KUMAR 2020.10.27 12:01 I attest to the accuracy and integrity of this document