Sunil Kumar @ Gokul Age 22 Years S/O ... vs Union Territory Of J&K Through ... on 20 April, 2022

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Jammu & Kashmir High Court

Sunil Kumar @ Gokul Age 22 Years S/O ... vs Union Territory Of J&K Through ... on 20 April, 2022

1. Petitioner by invoking the jurisdiction of this Court in terms of Article-226 of the Constitution of India, has sought the indulgence of this court for issuance of writ of Habeas Corpus, writ of Certiorari or any other appropriate writ, order or direction with the prayer for quashment of the impugned detention order No. 09 of 2021 dated 08.07.2021 issued by the respondent No. 2 for detaining the petitioner u/s 8 (i) (a) of J&K Public Safety Act 1978 and further commanding the respondent No. 4 to release the petitioner from the Central Jail Kot Bhalwal Jammu on the following grounds:-

(i) that the petitioner is permanent resident of Chak Aslam Tehsil R.S. Pura District Jammu, law abiding and peace loving citizen of Union Territory of Jammu & Kashmir is entitled to protect his statutory and fundamental rights guaranteed under the Constitution of India;

(ii) that only the photostat copy of the impugned detention order and the list of the old criminal cases were communicated/supplied to the petitioner on 22.07.2021 by respondent No. 04 in Central Jail Kot Bhalwal Jammu, but no grounds, FIRs, statement of the witnesses recorded by police u/s 161 Cr.pc/164-A Cr.pc, seizure memos, site 2 plans, recovery memos, copies of challans or any other material regarding the registration of old criminal cases against the petitioner were supplied to him, although u/s 13 (1) of J&K Public Safety Act respondents have to communicate/provide the detention order alongwith aforesaid relevant material/documents not later than 05 days and in the exceptional circumstances not later than 10 days from the date of detention to the detune so that the detenue could make the representation at the earliest, but respondents have not communicated the aforesaid material to the petitioner within the stipulated time as prescribed under the J&K Public Safety Act whereby petitioner was not in a position to make the effective and meaningful representation to the Government or UT of J&K against the impugned detention order;

(iii) that the petitioner was earlier arrested and detained under the J&K Public Safety Act 1978 vide detention/warrant order No. 08 of 2018 dated 01.10.2018 on the basis of the old FIRs mentioned by the respondent No. 03 and was released in 2019, and it is unfortunate that on the basis of the same old FIRs and two (2) fresh false FIR the petitioner was again arrested on 19.06.2021 in false FIR No. 125/2021 by the Police Station R.S, Pura, wherein, petitioner was not on bail rather he remained in the custody of Police Station R.S. Pura illegally without his any involvement, and meanwhile respondent No. 02 on the recommendation of the respondent No. 03 detained the petitioner u/s 8 (i) (a) of the J&K Public Safety Act 1978 vide impugned detention order No. 09 of 2021 whereafter he was shifted to Central Jail Kot Bhalwal Jammu;

(iv) that the impugned detention order and the list of the cases attached with detention order are in the English language, whereas, petitioner can only sign but cannot read or understand the detention order as well as the list of the cases annexed with the impugned order which are in English, neither the alleged detention order was ever read over and explained to him in the Hindi or Dogri language which the petitioner understand, as such, the petitioner is totally ignorant about the alleged impugned detention order;

(v) that respondent No. 02 has not mentioned the grounds/material in the impugned detention on the basis of which he would have satisfied himself, the impugned detention order is verbatim copy of the dossier has been issued by respondent No. 02 without application of mind, respondent No. 02 without formulating the grounds of detention has issued the detention order mechanically, illegally and in casual manner which is unsustainable in law;

2. Respondent No. 02 has filed a counter affidavit, wherein, he has specifically contended, that petitioner has concealed material facts, as right to liberty is not an absolute right and it is subjected to reasonable restrictions as envisaged under Article-22(2) of the Constitution of India, thereby, petition is not maintainable and deserves to be dismissed. It is contended, that the power of preventive detention is different from punishment, preventive detention is aimed at stopping the illegal activities of an individual which otherwise under common both criminal/civil 3 cannot be stopped, and the said individual creates a havoc in the society which leads to public disorder, peace, stability and in certain cases also raises alarm bells regarding the Nation‟s unity and Integrity, petitioner falls under the category of being a threat to the public order, peace and stability in the society, thus, falling under the category of Section 8 of the Public Safety Act. It further contended, that petitioner is a hardcore criminal and had been booked under many criminal cases, has no respect for law of the land and always believes in breaking the law repeatedly, thus scaring and terrorizing the people of the area, action against the petitioner under substantive laws from time to time have not proved deterrent, and he has not even mended his criminal mind, the detention of petitioner under preventive detention is only to keep the petitioner at bay as a precautionary measure and not as a punishment, dossier was submitted to him to detain the petitioner under the provisions of Public Safety Act, as the petitioner is a desperate character and habitual of indulging in act of crime he has recommended that the petitioner has an incorrigible nature who instead of reforming himself has continuously indulged in criminal activities and has scant respect for law of the land, has created terror/fear among the locals and disturbs even the tempo of the life of the community and the general public. It is moreso, contended, that petitioner has been categorically informed of the detention order, notice, and grounds were read over to him in English language and explained in Dogri to him, as his right for representation was explained, however, petitioner has become threat to the public order and has made a mockery of the system, after FIRs the petitioner used to come out either on bail or defeating the substantial justice system and again use to resume his criminal activities with fresh vigor, thereby, it has become essential for law and order machinery to recommend his preventive detention so as to give a sigh of respite to the citizens. It is contended, that the petitioner is involved in numerous criminal activities of serious and heinous nature viz;

(i) FIR No. 213/2014 u/s 341/323 RPC, 4/25 A. Act P/S R.S Pura, (ii) FIR No. 83/2015 u/s 307/341/323/147 RPC, 4/25 A. Act P/S R.S Pura, (iii) FIR No. 80/2016 u/s 341/323/34 RPC, 4/25 A. Act P/S R.S Pura, (iv) FIR No. 223/2017 u/s 3/25, 4/25 A. Act P/S R.S Pura, (v) FIR No. 59/2018 u/s 323/458/34 RPC, 4/25 A. Act P/S R.S Pura, (vi) FIR No. 67/2018 u/s 307/341/323/147/149 RPC, 4/25 A. Act P/S R.S Pura, (vii) FIR No. 06/2020 u/s 452/323/201/34 IPC, 4/25 A. Act P/S R.S Pura & (viii) FIR 4 No. 125/2021 u/s 3/25, 4/25 A. Act P/S R.S Pura, and is a habitual criminal, and if he remains free in the society, he would definitely indulge in criminal activities and would be danger to the public peace and tranquility, therefore, the presence of subject in society is certainly prejudicial to the maintenance of public order, peace and tranquility and safety of citizens of the area.

3. Respondent No. 03 while objecting to the writ petition and opposing the release of petitioner, by filing counter affidavit, has vehemently contended, that petitioner is a hardcore criminal and was booked under many criminal cases, but he has no respect for law of the land and always believes in breaking the law repeatedly thus scaring and terrorizing the people of the area, action against petitioner under substantive laws from time to time has not proved deterrent and the petitioner has not mended his criminal mind, therefore, the detention of the petitioner under preventive law is only to keep the petitioner at bay as a precautionary measure and not as a punishment; petitioner has an incorrigible nature and instead of reforming himself has continuously indulged in criminal activities and has scant respect for the law of the land; he has created terror/fear among the locals; grounds of detention order, notice etc. were read over in English language and explained in Dogri to him and his right to make representation was explained; dossier was prepared and sent to concerned quarter for detaining the petitioner under PSA; dossier were recommended and DM Jammu vide order No. 09 of 2018 dated 01.10.2018 issued PSA/warrant and the said criminal/petitioner has been detained under PSA as all the necessary formalities had been completed at the time of detaining the petitioner; petitioner has remained active in his criminal activities and keeping his criminal record in view, in the year 2018 he was detained by DM Jammu vide order No. 09 of 2018 dated 01.10.2018 under PSA and lodged in Central Jail Kot Bhalwal Jammu, and after his release he again indulged in criminal activities in FIR No. 125/2021 u/s 3/25, 4/25 Arms Act, and again he has been taken under contemplation for recommendation of PSA; every time detail of all the cases FIR with status provided to the quarter concerned in the form of a dossier, grounds of detention were read over and explained to the petitioner in language known to him; the involvement of the petitioner in 08 criminal cases of serious and heinous nature compelled him to prepare dossier for recommendation of his detention under PSA and in addition, 5 petitioner is also a history sheeter of the police station which is clearly indicating that the said petitioner was required to be detained under PSA so that peace and tranquility could be provided to the general public, as the petitioner has created a sense of terror among the peace loving public of the locality, every case mentioned in the dossier clearly specified the role of PSA detention, challan have been produced before the concerned courts and the said PSA detention provides enough grounds of detention for respondent No. 02, all the necessary documents which were required have been supplied to the petitioner.

4. Mr. D.S. Saini Ld. Sr. Advocate appearing on behalf of petitioner has reiterated the grounds urged in the petition and has vehemently sought the setting aside/quashment of the impugned detention order on the following counts:-

(i) It is argued, that petitioner/detenue has not been supplied the copies of dossier, copies of all the FIRs registered against him, copies of recovery & seizure memos, copies of statements of prosecution witnesses recorded u/s 161/164-A Cr.pc and has therefore been deprived from his legal right to make effective representation before the State Govt. which constitute infraction of his valuable right guaranteed under Article 22(5) of Constitution of India r/w Sec. 13(1) of J&K Public Safety Act which makes the detention order invalid. To buttress his arguments, learned counsel has relied upon the decisions reported in, (i) AIR 2000 SC 2504 (State of Maharashtra & Ors.

v. Santosh Shankar Acharya), and (ii) LPA No. 137/2020 (Saboor-ul-Haq Malla v. Union Territory of JK & Anr.) decided by the Division Bench of Hon‟ble High Court of J&K on 18.12.2020;

(ii) It is argued, that the petitioner/detenue was already in custody in FIR No. 125/2021 by the Police Station R.S, Pura, wherein, petitioner was not on bail rather he remained in the custody of Police Station R.S. Pura illegally without his any involvement, respondent No.2 did not apply his mind whether detention order was necessary despite the fact that detenue was already in custody, non-application of mind on the part of detaining authority makes the detention order invalid and unsustainable in the eyes of law. Reliance has been placed on (i) Writ Petition (Criminal) Nos. 1571-1577 of 1984 D/d 24.01.1985 (Jai Singh

- Petitioners versus State of Jammu and Kashmir -

Respondents), (ii) HC (W) No. 03 of 2006 D/d 23.05.2006 (Jan Mohd. - Appellant versus State & Ors.) & (iii) HCP No. 173 of 2002 D/d 08.05.2003 (Khan Mushtaq Ahmad - Appellant versus State of J&K - Respondent);

(iii) It is argued, that the impugned detention order and the list of cases attached with it are in the English language whereas the petitioner/detenue only understands Hindi/Punjabi, neither the detention order was read over and explained to the petitioner in 6 Hindi or Dogri language which is a pre-requisite for maintainability of the detention order, the non-supply of detention order and all other documents in Hindi or Punjabi language violates the provisions of law as such the detention order deserves its quashment. To support his arguments, learned counsel has relied upon a decision reported in 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik v. State & Ors.);

(iv) It is argued, that the grounds of impugned detention order is verbatim copy of the dossier and no other material has been considered by the detaining authority which speaks volumes about the non-application of mind on the part of the detaining authority which does not justify the preventive detention and the detention order requires quashment. To support his arguments, learned counsel has relied upon the rulings reported in, (i) WP (Crl) No. 54/2020 (Balbir Chand - Petitioner vs. UT of J&K and others - Respondents), (ii) Naba Lone vs. District Magistrate (1988 SLJ 300), (iii) Noor-ud-Din Shah vs. State of J&k and Ors (1989 SLJ, 1), and (iv) Jai Singh and Ors. vs. State of Jammu and Kashmir (AIR 1985 SC 764);

5. Mr. Amit Gupta Ld. AAG appearing on behalf of respondents, has reiterated the grounds contained in the detention order, and has vehemently argued, that the detenue/petitioner is a habitual criminal who has created fear amongst the general public, and since he was likely to commit similar offences in future, it was important to prevently detain him, as the ordinary law had no deterrent effect on him. It is argued, that the petitioner has no respect for law and has indulged in so many cases viz; attempt to murder, burglary, wrongful restraint and assault, abduction cases, use of sharp edged weapons, extortion, assault on public servants, theft cases, illegal possession of fire arms, rioting, arson, and all the offences against the petitioner are heinous in nature as he has indulged in organized crime and has disrupted the peace of the area, therefore, the detention order against the petitioner needs its confirmation and dismissal of the petition.

6. I have heard learned counsel for the petitioner and learned AAG for respondents. I have also perused the contents of the petition, counter affidavits filed by the respondents and the record made available by the respondents.

7. The first argument urged by learned counsel for the petitioner is, that the detenue/petitioner has not been supplied the copies of dossier, copies of FIRs registered against the petitioner, recovery memos, statements of witnesses recorded under Section 161 Cr.P.C to enable the petitioner to make effective representation against the impugned detention order, thereby, for non-supplying of such material, petitioner‟s right to 7 representation against his detention has been violated in terms of Article 22 (5) of Constitution of India r/w Section 13 of Jammu and Kashmir Public Safety Act 1978.

In AIR 2000 SC 2504, (State of Maharashtra and Ors. - Appellants v. Santosh Shankar Acharya - Respondent) relied upon by learned counsel for the petitioner, Hon‟ble Supreme Court while quashing the detention order on the ground that the detenue was not supplied the copies of the material from which the detention order was made, there was non- communication of the fact to the detenue that he could make representation to the detaining authority so long as the order of detention has not been approved by the state government amounted to denial of representation to the detenue and infraction of a valuable constitutional right guaranteed to the detenue under Article 22 (5) of Constitution of India, in Para (8) of the judgment held as under:

8. If the contention of Mr. Deshpande to the effect that the moment an order of detention issued by an order under sub-section (2) of Section 3 of the Act is communicated to the State Government under sub-section (3) of the said Section thereof the State Government becomes the detaining authority, and therefore, the power under Section 21 of the Bombay General Clauses Act cannot be exercised by the said detaining authority is correct, then it has to be found out as to under which contingency Section 14 of the Maharashtra Act would apply. To our query neither Mr. Deshpande nor Mrs. Ramani, learned counsel appearing for the State Government could indicate any situation when such power could be exercised. It is too well known a principle of construction of statutes that the legislature engrafted every part of a statute for a purpose and the legislative intention is that every part of the statute should be given effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. We are cognizant of the principle ex majori cautela but it is difficult for us to apply the said principle to Section 14 of the Maharashtra Act and even hold the same to be tautologous in as much as it has never been shown as to what was the necessity for the legislature to protect the power under Section 21 of the Bombay General Clauses Act, to an order of detention made under the Maharashtra Act. The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued 8 by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order.

Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. 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 an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumars case (supra) would apply notwithstanding the fact that in Kamlesh Kumars case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA.

In LPA No 137/2020 (Saboor-ul-Haq Malla v. Union Territory of JK & Anr.) relied upon by learned counsel for the petitioner decided by Division Bench of High Court of J&K on 18.12.2020, Hon‟ble High Court of J&K while quashing the detention order on the ground that the detenue was not communicated the grounds of detention, in paras 15, 16, 17 & 18 held as under:

15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu 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 9 Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such noncommunication 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 this detention order is concerned.

18. The appeal is allowed. The impugned order is set aside."

Ratios of the judgments (supra) make the legal proposition abundantly clear, that non-supply of the essential documents/copies of the material on which detention order is passed against the detenue and failure of non- communication to the detenue that he has right to make representation before the detaining authority so long as the order of detention has not been approved by the State Government amounts to infraction of constitutional right of the detenue guaranteed under Article 22 (5) of Constitution of India r/w Section 13 of J&K Public Safety Act 1978 which invalidates the order of detention.

8. The 2nd argument canvassed by learned counsel for the petitioner is, that petitioner/detenue was already in custody in FIR No. 125/2021 of police station R.S. Pura, respondent No. 02 did not apply his mind whether detention order was necessary despite the fact that the detenue was already in custody, non-application of mind on the part of detaining authority makes the detention order invalid and unsustainable in the eyes of law.

In WP (Criminal) Nos. 1571-1577 of 1984 decided on 24.01.1985 (Jai Singh - Petitioner versus State of Jammu and Kashmir - Respondent), Hon‟ble Supreme Court while observing that where the 10 detenue was already in custody in connection with a criminal case, the District Magistrate did not apply its mind whether detention was necessary, in Head Note of the case law held as under:-

Jammu and Kashmir Public Safety Act, (6 of 1978), Section 8 - Order of detention of detenue- Detenu already in custody in connection with a criminal case - The District Magistrate did not apply his mind whether detention was necessary despite the fact that detenu was already in custody - Detention held invalid.

In HC (W) 3 of 2006 D/d 23.05.2006 (Jan Mohd - Appellant versus. State & Ors. - Respondents), Hon‟ble High Court of J&K while observing that when the petitioner was already arrested and there was no scope for the detenue to be enlarged on bail, the detention order is lilable to be quashed, in para 12, 13 and 14 held as under:-

12. "There being no material on records of the District Magistrate to record the aforesaid finding constrains me to hold that the satisfaction recorded by the learned District Magistrate, Rajouri, that in the event of release of the detenue on bail or otherwise, he was likely to indulge in such activities, was unfounded and on the basis of such finding the petitioner detenue, who was already in custody in case F.I.R No. 82/2005, could not have been detained in preventive custody because in case of any detenue who is already in custody some material was required to be there before the District Magistrate to come to the conclusion that the detenue was likely to be released on bail and that while on bail he was again likely to indulge in such activities which would be prejudicial to the security of the State".

13. "For all what has been said above, I do not find any material on records to support detention order No. 09/2005 dated 6.12.2005, issued by the District Magistrate, Rajouri, for the detention of the petitioner".

14. "While allowing this petition, I would, therefore, quash detention order No. 09/2005 dated 6.12.2005, issued by the District Magistrate, Rajouri and direct release of the detenue/petitioner from preventive custody. The release of the detenue from preventive custody would not, however, come in the way of respondents to keep the petitioner in custody, if it was, otherwise warranted under law or was pursuant to the orders of the competent Court.

In HCP No. 173 of 2002 D/d 08.05.2003 (Khan Mushtaq Ahmad - Appellant versus State of J&K - Respondent), Hon‟ble High Court of J&K quashed the detention order on the ground that the detenue was already in custody arrested U/S 7/25 of the Arms Act 1959 and had neither applied 11 for bail nor released on bail in the pending case and in para 05 of the judgment held as under:-

05. "On admitted facts, the detenue was arrested in FIR 294/2001, offence u/s 7/25 Indian Arms Act, Police Station Bandipora and had not applied for bail in the said pending FIR. In the absence of submission of an application, seeking bail in the court competent to take cognizance of the bail application, the assumption of the detaining authority, that the detenue was likely to be released on bail and in the event of his being released on bail, the detenue would indulge in activities prejudicial to the security of the state, seems to have been made without application of mind. In the present case, no bail application is shown to have been submitted and the accused is not shown to have been released on bail by any court in the FIR 294/2001. The detaining authority has not shown awareness of this fact in the order of detention, therefore, the order of detention has obviously been passed, without application of mind and is liable to be quashed. Habeas Corpus petition is accordingly allowed and order of detention No. 127 of 2001 dated 22.12.2001 is quashed. The detenue Mushtaq Ahmad Khan S/o Ghulam Rasool Khan R/o Nowpora Bandipora, shall be released forthwith, unless required in any other case".

Ratios of the judgments (supra) relied by learned counsel for the petitioner settles the legal controversy, that when the detenue is already in custody in a criminal case and is not released on bail, the District Magistrate cannot assume that the detenue was likely to be released on bail and in the event of his being released on bail, the detenue will indulge in activities prejudicial to the security of State, such satisfaction seems to have been made without application of mind, whereby the detention order is liable to be quashed. Ratios of the judgments (supra) squarely apply to the facts of the case in hand. Record reveals that detenue/petitioner was already in custody in FIR No. 125/2021 of P/S R.S. Pura Jammu for commission of offences U/S 3/25 r/w 4/25 Arms Act and was not bailed out. The detention order bearing No. 09 of 2021 dated 08-07-2021 does not reflect that the District Magistrate has applied its mind whether the detention of the petitioner was necessary despite the fact that he was already in detention. Non-application of mind on the part of the detaining authority makes the detention order impermissible, invalid and unsustainable in the eyes of law, as the detention order does not reflect that the detenue was likely to be released on bail, and while on bail he was again likely to 12 indulge in such criminal activities which would be prejudicial to the maintenance of public order.

9. The 3rd argument urged by learned counsel for the petitioner is, that the detenue only understands Hindi/Punjabi language, the detention order was not read over to him in Hindi or Punjabi or Dogri language which is a pre- requisite for maintainability of detention order and non-supply of the detention order in the language which the detenue understands makes the detention order liable to be quashed.

In 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik v. State and Others) relied upon by learned counsel for the petitioner, detention order was quashed by Hon‟ble High Court of J&K on the ground that it was mandatory on part of the detaining authority to supply the grounds of detention to the detenue in the language which the detenue knows and infraction thereof is infringement of his legal and constitutional right to make effective representation, in paras 12, 13, 14 and 15 held as under:

12. Secondly, it has been emphatically averred in the petition on an affidavit that the detenue is an illiterate person and the grounds of detention were supplied to him in „English Language‟ and therefore he could not make a representation against his detention.

13. There is no counter to this allegation and therefore the court has to presume that the detenue is illiterate. In that case the detenue was to be supplied with a copy of the grounds of detention in a language, which he knew and understood, so as to enable him to make a representation against his detention. It is an established law that the grounds of detention are to be supplied to the detenue in the language, which he knows. If it is not done, it will deprive him of his legal and constitutional right to make an effective representation against his detention.

14. From the perusal of record, the contention of the petitioner is confirmed that he is illiterate. He has put his thumb impression on the receipt obtained from him;

Merely saying that the grounds of detention were explained to the detenue in English and Urdu is not sufficient to observe the mandate of law.

15. On this ground also the detention order is liable to be quashed. Non-supply of grounds of detention to the detenue in the language he understands is flagrant violation of the mandate of law which bad deprived him of his constitutional right to make a representation against his detention as provided under Art. (5) of the Constitution of India.

Ratio of the judgment (supra) makes the legal position abundantly clear that non-supply of grounds of detention to the detenue in the language he understands is flagrant violation of the mandate of law which vitiates the detention order.

10. The 4th argument canvassed by learned counsel for the petitioner is, that the detention order is a verbatim copy of the dossier and no other material has been considered by the detaining authority which speaks volumes about the non-application of mind by the detaining authority whereby the detention order is liable to be quashed.

In WP (Crl) No. 54/2020 decided by Hon‟ble J&K High Court, His Lordships Hon‟ble Mr. Justice Tashi Rabstan while relying upon the judgments of (i) Naba Lone v. District Magistrate 1988 SLJ 300, (ii) Noor-ud-Din Shah v. State of J&K & Ors. 1989 SLJ, 1 and (iii) Jai Singh & Ors. v. State of Jammu & Kashmir AIR 1985 SC 764, in para 13 of the judgment held as under:

13. Applying the settled legal position to the facts of the present case, I find that the order impugned cannot stand as it is based on grounds of detention, which is only verbatim copy of police dossier.

The order of detention, for the reasons, exhibit total non-application of mind on the part of detaining authority and therefore, the petition is allowed and the detention order No. PSA/104 dated 16.10.2020 passed by the District Magistrate, Kathua-respondent No. 2 directing the detention of Balbir Chand S/o Rana R/o Chack Drab Khan, Tehsil and District Kathua is quashed. Respondents are directed to release the detenue forthwith, provided he is not required in connection with any other case.

Ratio of the judgment (supra) makes it manifestly clear, that when the grounds of detention supplied to the detenue is a verbatim copy of the police dossier, it shows total non-application of mind on the part of the detaining authority, the liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner, which vitiates the detention order.

11. In view of the settled position of law, it is apt to reiterate here, that detention record submitted by ld. AAG depicts that the detenue has 14 received total 140 leaves of the papers pertaining to the detention order. It is noteworthy to mention here, that against the detenue as many as 08 FIRs have been lodged in police station R.S. Pura. Detention record does not depict that statements of all prosecution witnesses recorded u/s 161/164-A Cr.P.C, copies of all site plans, copies of all the memos prepared by the investigating officers have been supplied to the detenue. There is no evidence on record that the detention documents have been supplied to the petitioner in Hindi/Dogri Language. Non-supplying of the whole of the detention material to the detenue has debarred him from making effective representation to the detaining authority about his detention which is infraction of a valuable constitutional right guaranteed to the detenue under Article 22 (5) of Constitution of India r/w Section 13 of J&K Public Safety Act 1978 which makes the order of detention invalid. In depth perusal of the detention record further demonstrates, that the detention order issued by Respondent No. 02 is the verbatim copy of the dossier supplied by Respondent No. 03 (SSP Jammu) which further speaks volumes about the non-application of mind on part of the detaining authority, which does not justify the preventive detention. In view of the settled position of law discussed above, non-supply of the detention material in the language which the detenue understands also violates the provision of law and makes the impugned detention order invalid and liable to be quashed.

12. For all what has been discussed above, instant petition is allowed, and impugned detention order No. 09 of 2021 dated 08.07.2021 bearing endorsement No. DMJ/LO/21-22/1495-97 dated 08-07-2021 of District Magistrate Jammu for detention of Sunil Kumar @ Gokul age 22 years S/O Tarseem Lal (caste Bhagat) R/O Chak Aslam Tehsil R.S. Pura District Jammu is hereby quashed/set aside. Petitioner shall be released from preventive custody forthwith if not required in any other case. The detention record be handed over to Mr. Amit Gupta Ld. AAG.

(MOHAN LAL) JUDGE Jammu 20.04.2022 Vijay

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