Jammu & Kashmir High Court - Srinagar Bench
Hayat Ahmad Bhat @ Hayat Dar vs Ut Of J&K & Ors on 29 June, 2022
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HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 309/2021
Reserved On: 02. 06.2022
Pronounced on: 29.06.2022
Hayat Ahmad Bhat @ Hayat Dar .....Petitioner(s)
Through: Mr.M.A.Qayoom, Advocate.
V/s
UT of J&K & Ors.
..... Respondent(s)
Through: Mr. Sajad Ashraf, GA
CORAM: HON'BLE MR. JUSTICE, M.A.CHOWDHARY,JUDGE
JUDGMENT
1. District Magistrate, Srinagar (hereinafter called ‗Detaining Authority') in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. DMS/PSA/37/2021 dated 23.08.2021 (for short 'impugned order'), in terms whereof the petitioner namely Hayat Ahmad Bhat @ Hayat Dar S/O Late Ghulam Rasool Dar R/O Dar Mohalla Soura, Srinagar (for short ‗detenue') was ordered to be detained and lodged in District Jail, Kupwara.
2. It is stated in petition on hand that the detenu has been implicated in 18 cases registered against him at different Police Stations and despite being implicated in substantive offences, detenu has been booked under preventive detention in terms of the impugned detention order.
3. The impugned order of detention has been challenged on various grounds which are taken in alternative without prejudice to each other:-
i/ the detaining authority has not followed the constitutional and statutory procedural safeguards as provided under article 22(5) of the Constitution of India.WP (Crl) No. 309/2021
Page |2 ii/ the detenu has not been furnished the material relied upon by the detaining authority while passing impugned detention order such as copy of FIR, arrest memo, seizure/recovery memo and the statements recorded under section 161 Cr.P.C which has deprived the detenue to make a meaningful representation against his detention.
iii/ It is also contended that the detenue through his counsel submitted a representation to the respondent no. 1 on 08.11.2021 whereunder he was informed that the order of detention of the detenue being illegal and as the grounds of detention relied upon by the detaining authority besides being illegal, are stale in point of time, therefore, the order of detention be revoked and he be set at liberty. Copy of said representation was also submitted to the respondent no. 2 for appropriate necessary action. However, neither the respondent no. 1 nor the respondent no. 2 has considered the representation filed by the detenue. iv/ The detenue has been detained for his activities which are allegedly prejudicial to both the ‗Security of the State' as well as' Public Order'. It is further submitted that in terms of the provisions of the J&K PSA the detenue could have been detained, either for safeguarding the Security of State or Public Order. The detaining authority himself seems to be confused regarding as to whether the alleged illegal activities of the detenue are threat to the ‗Security of State' or ‗Public Order'.
4. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been found WP (Crl) No. 309/2021 Page |3 indulging in unlawful activities such as motivating youth of the area and aided them towards unlawful activities which are prejudicial to the public order as well as maintenance of Security of UT of J&K and the detenue is involved in 18 cases registered at different Police Stations; that on account of and in view of aforesaid facts and circumstances the detaining authority found it necessary and imperative to invoke the relevant provisions of PSA of 1978 and subsequently detain the detenue in order to preclude the detenue from indulging in activities which would be prejudicial to the maintenance of public order as well as security of the State ; Copy of the PSA warrant, letter addressed to the detenue, grounds of detention and the material relied upon by detaining authority have been handed over to the detenue, contents thereof have been read over and explained to the detenue in a language which he fully understood; Further detenue was also informed about his right to make representation to the detaining authority or to the Government, if he so desired and to this effect the detenue has subscribed his signatures on the execution report. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.
5. I have heard learned counsel for parties and considered the matter.
6. Though various submissions have been made by learned counsel for petitioner to throw challenge to impugned detention order, yet one ground taken by him to square off instant case is suffice to be discussed herein. It is submission of learned counsel for the petitioner that impugned detention order has been passed on both expressions, viz. ―acting in any manner prejudicial to the security of the State‖ and ―acting in any WP (Crl) No. 309/2021 Page |4 manner prejudicial to the maintenance of public order‖, which reflects non-application of mind on the part of detaining authority. In support of this submission, he has placed reliance on the law laid down in case G.M. Shah v. State of J&K, 1980 (AIR) SC 494.
7. Taking into account the submissions made by learned counsel for parties, it would be appropriate to reproduce relevant portion of Section 8 of J&K Public Safety Act, 1978, hereinafter:
―8. Detention of certain persons. -
(1) The Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to--
(i) the security of the State or the maintenance of the public order;
.............................................. it is necessary so to do, make an order directing that such person be detained.
(2) any of the following officers, namely
(i) Divisional Commissioners,
(ii) District Magistrate, may, if satisfied as provided in sub-clause (i) and (ii) of clause [(a) or (a-1)] of sub- section (1), exercise the powers conferred by the said sub-sections.
(3) For the purposes of sub-section (1), [(a) Omitted.]
(b) "acting in any manner prejudicial to the maintenance of public order" means-
(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order;
WP (Crl) No. 309/2021
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(4) When any order is made under this section by an officer 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 other 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.‖
8. As is evident from Section 8(1)(i) and Section 8(2) of the Act of 1978, the Government or District Magistrate may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order, make an order directing that such person be detained. The expression ―acting in any manner prejudicial to the security of the State‖ is defined in Clause (a) of Sub section (3) of Section 8 of the Act as making preparation for using or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force to overthrow or overawes the Government established by law in the State. Clause (b) of Section 8(3) of the Act of 1978 defines the expression ―acting in any manner prejudicial to the maintenance of public order‖. The distinction between the two expressions lies in the fact that while in the case of the former, the object of making preparation or instigating or abetting the use of force etcetera, should be with a view to overthrow or overawe ―the Government established by law in the State‖, in the case of the latter, the object of the acts mentioned therein should be disturbance in public order.
9. As has been said by the Supreme Court in G. M. Shah (supra), the expressions ―law and order‖, ―public order‖ and ―security of the State‖ are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach WP (Crl) No. 309/2021 Page |6 does not amount to disturbance of public order and every public disorder may not prejudicially affect the ―security of the State‖.
10. In the present case, intriguingly, detaining authority has made use of both expressions ―prejudicial to security of the State‖ as well as ―prejudicial to maintenance of public order‖. Not only this, counter affidavit filed by respondent no.2, more particularly at paragraph 1, mentions that activities of detenu were highly prejudicial to the maintenance of ―public order‖ and ―security of the State‖. Reliance on both the factors in the grounds of detention furnished to detenue is to be held illegal one and as a result thereof impugned order is vitiated.
11. It has been contended on behalf of the petitioner that representation on his behalf had been submitted to detaining authority as well as to Principal Secretary to Government Home Department and also placed on record copy thereof as annexures IV & V. Despite pleading specifically by the petitioner in sub para VIII of para 3 regarding grounds of challenge, respondents except mentioning that the detenue was also informed about his right to submit representation against his detention, has not responded as to whether any representation was filed and how the same was dealt with.
12. On keen perusal of the detention record, produced by learned Government Advocate, it does not reveal or indicate anything with regard to receipt or disposal of the representations. It is thus evident from the pleadings of the respondents as well as detention record that representations submitted on behalf of detenue in the month of Nov. 2021 have not been considered by them so far.
13. Admittedly, as is evident from the copy of representation dated 8.11.2021 which has been received by the respondents on the same day, WP (Crl) No. 309/2021 Page |7 the detenu had filed the representation against his detention and the same has not been considered by the respondents till date, inasmuch as, there is no mention with regard to the said representation filed by the respondents either in the counter affidavit or in the detention record. In these circumstances, this Court is left with no option, but to accept the stand of the petitioner that he has moved representation against his detention, but the same has not been considered.
14. Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenu's representation as early as possible. It is the bounden duty of the detaining Authority or the Government, as the case may be, to consider the representation of the detenu and pass appropriate orders thereon. There should be no slackness, indifference and callous attitude in consideration of the representation of the persons who are detained. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal. Every day delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference.
15. In Tara Chand vs State of Rajasthan & Ors., 1980 (2) SCC 321, Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal. The Supreme Court in another case of Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to WP (Crl) No. 309/2021 Page |8 refer the case of the detenu along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. Therefore, it is implicit in clauses (4) and (5) of Article 22 of the Constitution of India, that the Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The Supreme Court in the case of Kundanbhai Dulabhai Sheikh vs. District Magistrate Ahmedabad & Ors. 1996 Crl.L.J 1981 quashed the detention order only on the ground of delay in disposing of the representation.
16. Having gone through the observations of the Supreme Court in the aforesaid cases, this court is of the considered view that the said decisions with all fours are applicable to the instant case. Therefore, the detention order is liable to be quashed.
17. For the foregoing reasons, this petition is allowed and detention Order No.DMS/PSA/37/2021 dated 23.08.2021, passed by District Magistrate, Srinagar, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case(s).
18. Disposed of.
19. Detention record be returned to learned counsel for respondents.
Srinagar .06.2022 ( M. A.CHOWDHARY) JUDGE Mujtaba Whether the order is reportable: Yes/No. WP (Crl) No. 309/2021 Page |9 WP (Crl) No. 309/2021