Jammu & Kashmir High Court
Gurdit Singh @ Prince @ Pindi vs The Union Territory Of Jammu & on 25 August, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 12.07.2023
Pronounced on : 25.08.2023
WP(Crl) No. 07/2023
CrlM no. 93/2023
Gurdit Singh @ Prince @ Pindi
S/o Bhopinder Singh
R/o House No. 20, Sector No. 02, Model Town
Gangyal, Jammu
Tehsil and District Jammu
Presently lodged in District Jail, Amphalla,
Jammu
Through his mother Amrit Kour.
.....Petitioner(s)
Through: Mr. Muzaffar Iqbal Khan, Advocate.
Vs
1. The Union Territory of Jammu &
Kashmir through Principal Secretary
(Home) Civil Secretariat, Jammu.
2. Divisional Commissioner, Jammu.
3. Superintendent of Police,
District Jail, Ambphala, Jammu.
..... Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. The preventive detention jurisdiction is loaded with a very heavy onus resting not only upon the law enforcement authority which intends to seek preventive detention of a person under a given law but also upon the authorities vested with the jurisdiction to 2 WP(Crl) No. 07/2023 consider and pass a preventive detention order to denude a person of his fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India. Any omission of said onus bears an inviting risk of nullifying of a preventive detention of a person detained.
2. The present case is one in which the preventive detention order making authority has fallen in omission to discharge the said onus by not bearing in mind the constitutional safeguards attending passing of a preventive detention order against the petitioner as envisaged by the constitution bench of the Hon'ble Supreme Court of India in the case of "Kamleshkumar Ishwardas Patel Vs. Union of India & ors" reported in 1994 (4) SCC 51.
3. The petitioner is a 28 years old person who has come to question his preventive detention effected under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short, „PITNDPS Act‟).
4. The Senior Superintendent of Police, Jammu (in short SSP, Jammu) came to lay a dossier before the Divisional Commissioner, Jammu vide communication no.
CRB/Dossier/2022/22/DPOJ dated 27.10.2022 putting up a case for preventive detention of the petitioner.
5. In submitting said dossier against the petitioner, the SSP, Jammu came to brand the petitioner as a part of vicious network 3 WP(Crl) No. 07/2023 of drug traffickers and dealers and who is involved in various drug trafficking cases. The petitioner was mentioned to be a desperate character, in close association with notorious criminals/drug peddlers of the area having a gang of criminals showing no respect for the law of the land and found involved in a number of cases registered against him. The petitioner was referred to be an evil design in the society who is upto destroying the life of the youth of the society by indulging in business of selling drugs to young generation after obtaining the same by illegal means.
6. For the purpose of pasting this character identification of the petitioner, the SSP, Jammu came to refer to three First Information Reports (FIRs) against the petitioner. Said FIRs being FIR no. 68/2018 under Section 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short „NDPS Act‟) registered with Police Station, Gangyal, Jammu, FIR no. 139/2019 again under Section 8/21/22/27 of the NDPS Act registered with Police Station, Bishnah and FIR no. 250/2002 under Section 8/21/22 of the NDPS Act registered with Police Station, Gandhi Nagar, Jammu.
7. The dossier so submitted by the SSP, Jammu comprised of 49 leaves. In the said dossier with reference to the FIRs so mentioned, it came to be mentioned that in the first two FIRs, final police reports (challans), after the investigation, have been 4 WP(Crl) No. 07/2023 presented against the petitioner in the court of law whereas the third FIR being at the state of investigation. However, the quantity of the contraband (Heroine) allegedly recovered from the petitioner was missing in its mention in the said dossier with respect to all the three aforesaid FIRs.
8. In the said dossier, it is not spelled out by the SSP, Jammu as to whether the petitioner was under custody, judicial or police, or that he has been able to earn bail in his favour from the Court of law.
9. The Divisional Commissioner, Jammu, upon receiving the said dossier from the SSP, Jammu came to address a communication no. 601/RA/Dossier/4915 dated 02.11.2022 to the SSP, Jammu seeking the factual inputs about the aspect as to whether the petitioner was in judicial custody by reference to the police cases/police challans presented and under investigation against him or has been granted bail by the Court of law.
10. In response to the aforesaid communication of the Divisional Commissioner, Jammu the SSP, Jammu, vide his communication no. CRB/2022/22/DPOJ dated 21.11.2022, came to lay out the information that with respect to FIR no. 68/2018, a final police report was submitted on 27.09.2018 for trial of the petitioner in a competent criminal court of law in which the petitioner has been bailed out and so is with respect to FIR no. 139/2019 in which a final police report (challan) was 5 WP(Crl) No. 07/2023 said to have been presented on 04.12.2019 in which also the petitioner was on bail. With respect to under investigation FIR no. 250/2022, the investigation was said to be complete and pending presentation of a final police report while the petitioner was also on bail in the said FIR.
11. The Divisional Commissioner, Jammu, acting second time, came to address a communication no. 601/RA/Dossier/7082143 dated 10.12.2022 to the SSP, Jammu thereby pointing out the deficiency with respect to the dossier so submitted in the sense that there was no mention in the dossier of the quantity of the contraband seized from the petitioner and, accordingly, the SSP, Jammu was asked to do the needful in the matter and re-submit the same to the Divisional Commissioner, Jammu.
12. The aforesaid communication dated 10.12.2022 addressed by the Divisional Commissioner, Jammu came to be supplemented by another communication no. 601/RA/Dossier/7082143 dated 26.12.2022 thereby reminding the SSP, Jammu to provide the clarifications as sought at the earliest for enabling the Divisional Commissioner, Jammu to proceed further in the matter.
13. The SSP, Jammu, at his end, came to respond to the Divisional Commissioner, Jammu's communication dated 10.12.2022 and vide a letter no. CRB/Dossier/2023/1566/DPOJ dated 06.01.2023 came to submit the requisite factual inputs for the consumption of the Divisional Commissioner, Jammu attending 6 WP(Crl) No. 07/2023 the dossier so pending consideration before the Divisional Commissioner, Jammu.
14. Armed with the dossier, the later on information input related to status of custody/bail of the petitioner and the quantity of the alleged contraband recovered from the possession of the petitioner implicating him in three FIRs, the Divisional Commissioner, Jammu came to pass Detention Order no. PITNDPS 01 of 2023 dated 16.01.2023 thereby ordering and subjecting the petitioner to suffer preventive detention so as to prevent him from committing any of the acts within the meaning of illicit traffic under PITNDPS Act.
15. In terms of the said detention order, the petitioner was directed to be detained in a District Jail, Jammu for a period to be specified by the Government. A copy of the detention order was directed to be forwarded to the SSP, Jammu for execution. Notice of the detention order was directed to be given to the petitioner by reading over and explaining the same to him in the language he will understand with supply of grounds of detention accompanying the said detention order.
16. The aforesaid detention order passed by the Divisional Commissioner, Jammu was based upon the purported grounds of detention on the basis of which the Divisional Commissioner, Jammu had found the basis good enough for obliging the SSP, Jammu's dossier with requisite effect of ordering the detention of 7 WP(Crl) No. 07/2023 the petitioner. The grounds of detention so accompanying the detention order are in the same mould and mood as the dossier of SSP, Jammu itself is.
17. The Divisional Commissioner, Jammu came to address a communication no. 601/RA/Detention/29 (7082143) dated 16.01.2023 to the petitioner for his notice about the fact that the Divisional Commissioner, Jammu has passed the detention Order no. PITNDPS 01 of 2023 dated 16.01.2023 under Section 3 of the PITNDPS Act bearing the grounds of detention on the basis of which the detention order was so passed and further apprising the petitioner that he can make a representation to the Government against the said detention order if so desired by him. Through this communication, the petitioner was meant to be handed over with five leaves comprising of detention order as well as the grounds of detention as endorsed in the communication itself. A copy of this order was forwarded to the Financial Commissioner (Additional Chief Secretary) Home Department, J&K.
18. From the record of the case it is born out from a communication no. DJJ/DET/23/239-48 dated 16.01.2023 coming from the end of the Superintendent, District Jail, Jammu to the Deputy Secretary to Government, Home Department, J&K about the fact of execution of the detention warrant upon the petitioner on 16.01.2023 without disclosing the place and time of execution of 8 WP(Crl) No. 07/2023 the said detention warrant. Vide this communication, it is meant to be apprised to the Deputy Secretary to Government, Home Department, J&K that the notice of the detention order has been served by reading over and explaining to the petitioner in Hindi/Dogri language which he understood fully.
19. The aforesaid communication was accompanied with a Receipt of Grounds of Detention purportedly furnished by the petitioner bearing his signature in terms whereof it is born out that the petitioner came to receive a copy of grounds of detention, detention warrant along with dossier consisting of total 53 leaves on 16.01.2023 through Superintendent, District Jail, Jammu and that it was read over and explained to the petitioner in Hindi/Dogri language as understood by him and also being informed about the option to make a representation to the Government against the detention order.
20. The execution of the warrant of detention was carried out by PSI Iahtsham-ul-Haq (PID no. EXJ-196270) of Police Station, Gangyal whose exercise of execution of detention warrant was also documented titled "Execution of PSA Warrant" to accompany the said communication no. DJJ/DET/23/239-48 dated 16.01.2023 of the Superintendent, District Jail, Jammu. In this execution of detention warrant by reference to PSI Iahtsham-ul-Haq, it is meant to be stated that he took into custody the petitioner from the Police Station, Gangyal, Jammu 9 WP(Crl) No. 07/2023 on 16.01.2023 at about 14.30 hours and that notice of the detention order was given to the petitioner by reading over and explaining in Hindi and Dogri language as understood by the petitioner fully in token of which his signature was taken on the execution of the said PSA warrant. Handing over of the person of the petitioner by PSI Iahtsham-ul-Haq to District Jail, Ambphala Jail authority on 16.01.2023 along with his original file is also mentioned in this Execution of PSA warrant.
21. In the Execution of PSA Warrant, there is no whisper of fact as to from which place the petitioner came to be apprehended and detained. Making a literal reading of this Execution of PSA Warrant, it is meant to be stated that the petitioner was in fact taken into custody from the Police Station, Gangyal without mentioning as to how the petitioner had come to be in the said Police Station on the said date and in which connection.
22. The petitioner's detention case came to be referred to the Advisory Board for its scrutiny and opinion resulting in submission of Opinion dated 23.01.2023 thereby validating the sufficiency of cause for detention of the petitioner under Section 3 of the PITNDPS Act.
23. The aforesaid entire exercise resulted in passing of the Government Order No. Home/PB-V/239 of 2023 dated 03.02.2023 issued by the Government of UT of Jammu and Kashmir acting through its Home Department thereby subjecting 10 WP(Crl) No. 07/2023 the petitioner to suffer preventive detention for a period of one year and his lodgement in the District Jail, Jammu. In this Government Order, there is no mention as to from which date the period of detention of one year is to be reckoned for the purpose of counting its expiry date.
24. The petitioner has come to challenge through the present writ petition his detention and the detention order passing related exercise at the end of the SSP, Jammu, the Divisional Commissioner, Jammu and the Government.
25. In the writ petition, the petitioner while vindicating his antecedents and honour against his character and reputation hitting remarks from the end of the SSP, Jammu as well as the Divisional Commissioner, Jammu has come up with the grounds of challenge as existed in para 6 from (i) to (viii) impugning his preventive detention.
26. The frontal ground of challenge to his preventive detention by the petitioner is that the constitutional requirement of Article 22(5) of the Constitution of India has been left unobserved as the petitioner was not extended with an option of making representation against his said detention to the detaining authority whereas making of representation by him to the Government against his said detention was offered as an option. Thus, as against availability of two simultaneous options, the detention order from the end of the Divisional Commissioner, 11 WP(Crl) No. 07/2023 Jammu afforded the petitioner only one option of making representation against his detention to the Government only. This ground of challenge so set up by the petitioner in the lead with rest of the grounds of challenge following if able to sustain itself may be sufficient in itself to set aside the detention of the petitioner thereby relieving the Court of its burden and labour of examining the validity of the other grounds of challenge to his detention.
27. The petitioner has pleaded it as a fact that the Divisional Commissioner, Jammu in his communication no. 601/RA/Detention/29 (7082143) dated 16.01.2023 addressed to the petitioner had omitted to apprise the petitioner about his entitlement to make a representation to the detention order passing authority that being the Divisional Commissioner, Jammu whereas it is only with respect to the Government that the petitioner was apprised and asked to make a representation against his detention. This omission on the part of the Divisional Commissioner, Jammu in extending an option to the petitioner to make a representation to the Divisional Commissioner, Jammu himself against the detention order passed against the petitioner is pleaded to have resulted in vitiating the detention order and thus, rendering it an illegality per se in the eyes of law admitting of no amends to bail out the detention order of the Divisional Commissioner, Jammu.
12 WP(Crl) No. 07/2023
28. In this regard, the learned counsel for the petitioner has pressed into speedy service a constitution bench judgment of the Hon'ble Supreme Court of India in the case of 'Kamleshkumar Ishwardas Patel Vs. Union of India and ors‟, (1995) 4 SCC 51. In this judgment, preventive detention carried out under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, „COFEPOSA Act‟) and the PITNDPS Act was under examination. This case came to be adjudicated by the Hon'ble Supreme Court of India with a backdrop of two judgments of the Hon'ble Supreme Court of India bearing divergent view with respect to a common question. The question was as to when an order for preventive detention is passed by an officer specially empowered to do so by the Central Government or the State Government, then whether the said authorized officer is obliged to consider the representation submitted to him by the detenue.
29. Two divergent views on this question were obtaining from a three judge bench judgment of the Hon'ble Supreme Court of India in the case of „Amir Shad Khan vs. L. Hmingliana and ors‟, (1991) 4 SCC 39 and a two judge bench judgment in the case of „State of Maharashtra & anr vs. Smt. Sushila Mafatlal Shah and ors‟, (1988) 4 SCC 490.
30. The constitution bench of the Hon'ble Supreme of India in order to resolve the issue so cropped up before it in the case of 13 WP(Crl) No. 07/2023 Kamleshkumar Ishwardas Patel Vs. Union of India and ors, (1995) 4 SCC 51 came to acknowledge that the question posed has to be considered in the light of the provisions relating to preventive detention envisaged in article 22 of the Constitution of India as well as the provisions contained in the relevant statutes.
31. After delving in depth into the matter, the constitution bench of the Hon'ble Supreme Court of India came up with a grip on the issue from its para 31 onwards in its judgment. Before reproducing para 31, 32, 33, 34, 35, 36, 37, 38 and 39, a reference needs to be made to the fact that the three judge bench view in the case of Amir Shad Khan‟s case (supra) was that when an officer of the State Government or the Central Government has passed any detention order under COFEPOSA Act and PITNDPS Act and upon receipt of a representation from the detenue against said detention order, the authorized officer is convinced that the detention needs to be revoked, he can do so, whereas the two judge bench judgment in the case of Sushila Mafatlal Shah‟s case (supra) carried the view and verdict by holding that if an order of detention is made by an officer specially empowered by the Central Government or the State Government, the representation of the detenue is required to be considered only by the Central Government or the State Government and it is not required to be considered by the officer who has made the detention order.
14 WP(Crl) No. 07/2023
32. In the backdrop of this dichotomy of position on the issue, the Constitution Bench of the Hon'ble Supreme Court of India's reading and understanding of the position of law, in Kamleshkumar Ishwardas Patel‟s case (supra), proceeds from para 31 to para 39 and the same need to be reproduced as it is:
"31. With due respect we find it difficult to agree with both the premises. Construing the provisions of Article 22(5) we have explained that the right of the persons detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premises that such rights does not flow from Article 22(5) cannot, therefore, be accepted.
32. The learned Judges, while relying upon the observations in Abdul Karim (supra) and the decisions in Jayanarayan Sukul (supra), Haradhan Saha (supra) and John Martin (supra) have failed to notice that in these cases the court was considering the matter in the light of the provisions contained in Section 7(1) of the Preventive Detention Act, 1950, whereby it was prescribed that the representation was to be made to the appropriate Government. The observations regarding consideration of the representation by the State Government in the said decisions have, therefore, to be construed in the light of the said provision in the Preventive Detention Act and on that basis it cannot be said that Article 22(5) does not postulate that the person detained has no right to make a representation to the authority making the order of detention.15 WP(Crl) No. 07/2023
33. The second premise that the Central Government becomes the detaining authority since there is deemed approval by the Government of the order made by the officer specially empowered in that regard from the time of its issue, runs counter to the scheme of the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act which differs from that of other preventive detention laws, namely, the National Security Act, 1980, the Maintenance of Internal Security Act, 1971, and the Preventive Detention Act, 1950.
34. In the National Security Act there is an express provision [Section 3(4)] in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that 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 State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. That appears to be the reason why Section 8(1) envisages that the representation against the order of detention is to be made to the State Government. The COFEPOSA Act and the PIT Narcotic 16 WP(Crl) No. 07/2023 Drugs And Psychotropic Substances Act do not require the approval of an order made by the officer specially empowered by the State Government or by the Central Government. The order passed by such an officer operates on its own force. All that is required by Section 3(2) of COFEPOSA Act and PIT Narcotic Drugs And Psychotropic Substances Act is that the State Government shall within 10 days forward to the Central Government a report in respect of an order that is made by the State Government or an officer specially empowered by the State Government. An order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government because the report has to be forwarded to the Central Government in respect of both such orders. No such report is required to be forwarded to the Central Government in respect of an order made by an officer specially empowered by the Central Government. Requirement regarding forwarding of the report contained in Section 3(2) of the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act cannot, therefore, affords the basis for holding, that an order made by an officer specially empowered by the Central Government or the State Government acquires deemed approval of that Government from the date of its issue. Approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval of an order of detention would require consideration by the approving authority of the grounds and the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention. Unlike Section 3(4) of the National Security Act there is no requirement in the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act that the officer specially empowered for the purpose of making of an order of detention must forthwith send to the concerned Government the grounds and the supporting material on the basis of which the order of detention has been made.17 WP(Crl) No. 07/2023
Nor is it prescribed in the said enactments that after the order of detention has been made by the officer specially empowered for that purpose the concerned Government is required to apply its mind to the grounds and the supporting material on the basis of which the order of detention was made. The only circumstance from which inference about deemed approval is sought to be drawn is that the order is made by the officer specially empowered for that purpose by the concerned government. Merely because the order of detention has been made by the officer who has been specially empowered for that purpose would not, in our opinion, justify the inference that the said order acquires deemed approval of the Government that has so empowered him, from the date of the issue of the order so as to make the said Government the detaining authority. By specially empowering a particular officer under Section 3(2) of the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT Narcotic Drugs And Psychotropic Substances Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the concerned Government which had empowered him assumes the role of the detaining authority. We are unable 18 WP(Crl) No. 07/2023 to construe the provisions of the said enactments as providing for such a limited entrustment of power on the Officer who is specially empowered to pass the order. An indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT Narcotic Drugs And Psychotropic Substances Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out of the picture after he has passed the order of detention. It must, therefore, be held that the officer specially empowered for that purpose continues to the detaining authority and is not displaced by the concerned Government after he has made the order of detention. Therefore, by virtue of his being the detaining authority he is required to consider the representation of the person detained against the order of detention.
35. In Kavita v. State of Maharashtra (supra) the order of detention was made by the Government of Maharashtra and not by an officer specially empowered by the State Government. Similarly in Smt. Masuma (supra) it was held that the order of detention was not made by P.V. Nayak in his individual capacity as an officer of the State Government but it was made by him as representing the State Government and that it was the State Government which had made the order of detention action through the instrumentality of P.V. Nayak, Secretary to Government who was authorised to act for and on behalf of and in the name of the State Government under the Rules of Business. The said decisions did not relate to an order made by an officer specially empowered for the purpose and do not have a bearing on the question whether the representation against an order made by an officer specially empowered for that purpose is required to be considered by such officer
36. It appears that the decision in Ibrahim Bachu Bafan (supra), a decision of a bench of three Judges, was not brought to the notice of the learned Judges deciding Smt. Sushila Mafatlal Shah (supra). For the reasons 19 WP(Crl) No. 07/2023 aforementioned we are of the view that the decision in Smt. Sushila Mafatlal Shah (supra) in far as it holds that where an order of detention made by an officer specially empowered for the purpose representation against the order of detention is not required to be considered by such officer and it is only to be considered by the appropriate Government empowering such officer does not lay down the correct law.
37. The learned Additional Solicitor General has also placed reliance on the decision in John Martin v. State of West Bengal (supra) wherein the court was dealing with an order of detention made under the Maintenance of Internal Security Act, 1971 which contained an express provision in Section 8(1), for the representation to be made against the detention order to the appropriate Government. The said decision can, therefore, have no application to a detention under the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act which do not contain such a provision.
38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act the question posed is thus answered. Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT Narcotic Drugs And Psychotropic Substances Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenue is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by 20 WP(Crl) No. 07/2023 an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.
39. The appeals may now be taken up for consideration in the light of the a answer given to the question posed for consideration."
33. The Constitution Bench of the Hon'ble Supreme Court of India in Kamleshkumar Ishwardas Patel‟s case (supra) comes out with a perspective settling the issue by holding that a person being subjected to detention under COFEPOSA Act and/or PITNDPS Act has a right to make a representation to the detention order passing authority/officer and a representation if so made to the said officer/authority then same is required to be considered and a failure on this count to result in denial of the right conferred on the person detained to make a representation against the order of detention. This right of making a representation to the officer/authority concerned has been read by the Constitution Bench of the Hon'ble Supreme Court of India in the Kamleshkumar Ishwardas Patel‟s judgment (supra) as in addition to a detenue's right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorized 21 WP(Crl) No. 07/2023 by a State Government and to the Central Government and to have the same duly considered.
34. For the exercise of this right to make a representation to the officer/authority passing the detention order bearing the authorization, be it from the State Government or the Central Government ends, a detenue is required to be first apprised/informed of his right to make such a representation to the officer/authority making/passing the detention order. Thus, without a detenue having any such idea/information about any such right being available and extended to him to represent against his detention to the very said officer/authority passing the detention order, there cannot be a question of exercise of any such right of representation coming into play.
35. In the present case, the detention order itself self-exhibits that the Divisional Commissioner, Jammu, as being the officer exercising his authority in passing the detention order under PITNDPS Act against the petitioner, omitted to insert the option for the favour of the petitioner about his constitutional right to make a representation against his detention to the Divisional Commissioner, Jammu, though apprised about his right to make a representation to the Government. This, thus resulted in editing out a constitutional safeguard made available in terms of the aforesaid judgment of the Constitution Bench of the Hon'ble Supreme Court of India to be availed by the petitioner with 22 WP(Crl) No. 07/2023 respect to his detention as a result whereof the preventive detention order of the petitioner so passed by the Divisional Commissioner, Jammu rendered itself in misalignment with the Constitution Bench judgment of the Hon'ble Supreme Court of India in Kamleshkumar Ishwardas Patel Vs. Union of India and ors (supra). No salvage thus can be provided to the preventive detention order of the Divisional Commissioner, Jammu so passed against the petitioner notwithstanding the allegations as leveled in the dossier acting upon the basis of which the Divisional Commissioner, Jammu felt persuaded to formulate the grounds of detention against the petitioner.
36. This Court is not getting into the merits and demerits of the rest of the attending legal aspects of the order of detention in the face of the fact that the denial to the petitioner of his right to make a representation to the Divisional Commissioner, Jammu against his detention order so passed by the said officer vitiates the preventive detention order and renders the detention of the petitioner as illegal which cannot be allowed to last any further and thus the detention order of the petitioner deserves quashment.
37. Parting para of the Constitution Bench judgment of the Hon'ble Supreme Court of India in Kamleshkumar Ishwardas Patel‟s case (supra) highlights the option for a Constitutional Court to be resorted to when caught between two situations i.e., one of 23 WP(Crl) No. 07/2023 ensuring and insisting upon the procedural safeguards and the other being that of expediency of detention of a person on account of harmful consequences in his activity. Para 49 of the Constitution Bench judgment of the Hon'ble Supreme Court in Kamlesh Kumar Ishwardas Patel‟s case (supra) provides the option to be sided with by a court. Para 49 reads as under:
49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy.
He has urged that having regard to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards, The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court." Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission :
"May be that the detenue is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since 24 WP(Crl) No. 07/2023 its activities have paralyse the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues."
38. The Constitution Bench judgment of the Hon'ble Supreme Court of India in Kamleshkumar Ishwardas Patel Vs. Union of India and ors (supra) has been relied upon by the Hon'ble Supreme court of India in the case of Ankit Ashok Jalan vs. Union of India and ors, 2020 AIR (SC) 1936.
39. In the backdrop of the facts and circumstances of the case, the writ petition is allowed and the impugned detention Order no. PITNDPS 01 of 2023 dated 16.01.2023 is hereby quashed. The petitioner is directed to be restored to his personal liberty. The respondent no. 2-the Divisional Commissioner, Jammu to ensure the release of the petitioner from the confines of District Jail, Ambphala, Jammu. Writ petition is, accordingly, disposed of.
40. Record produced by Mr. Pawan Dev Singh, learned Deputy Advocate General be returned back against proper receipt.
(Rahul Bharti) Judge JAMMU 25.08.2023 Naresh, Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes