Fayaz Ahmad Kumar vs State And Ors on 18 September, 2018

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Jammu & Kashmir High Court - Srinagar Bench

Fayaz Ahmad Kumar vs State And Ors on 18 September, 2018

HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: HC(p) 57/2018 Dated : 18th of Sept., 2018
FAYAZ AHMAD KUMAR VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. MIR SHAFAQAT HUSSAIN
FOR THE RESPONDENT/s: . M/S. SHAH AMIR, AAG & SAAD GANIE, GA
(M.K.HANJURA-J)

01/ The detenue - Fayaz Ahmad Kumar, was earlier detained by
the respondent No.2 - District Magistrate, Baramulla, in exercise of
powers vested in him under clause (a) of section (8) of the Jammu &
Kashmir Public Safety Act, 1978 (for short Act of 1978), vide
detention order bearing No. 206/DMB/PSA/2016 dated 28-12-2016
and was lodged at Central Jail Kotebalwal . The said order was
challenged by the detenue before this Court in HC(P) 15/2017 and
after allowing the writ petition, the order of detention was quashed by
this Court and the respondents were directed to release the person of
the detenue forthwith. On production of the order of the Court before
the respondents, the detenue was discharged from preventive
detention, however, his custody was shifted to the police station,
Baramulla, and was kept in custody there in connection with various
cases registered against him under various F.I.Rs. While the detenue
was in the custody of the respondents, yet another order of detention
bearing No. 192/DMB/PSA/2018 dated 03-03-2018, impugned
herein, was slapped on him and he was ordered to be shifted to the
District Jail, Kathua, It is stated that the impugned order has been
issued on the same set of grounds and on the basis of same F.I.Rs as
were incorporated in the earlier order of detention. The detenue
continues to be in District Jail, Kathua, at the moment. The grounds
of detention, along with the allied documents, are said to have been
served on the detenue and the contents whereof, as contended, are
stated to have been read over and explained to him in the language
which he understood fully well.
02/ The order of detention has been challenged on the grounds,
inter alia, that the detenue has not been furnished the copies of the
relevant material on the basis of which the detaining authority has
passed the fresh order of detention, i.e., copy of dossier, the copies of
the F.I.Rs, statement u/s 161 Cr.PC, seizure memos and other
connected documents. Resultantly, the detenue has been deprived of
the constitutional right to make an effective representation against
the order of detention. It is also argued that the detenue could not
have been detained under the provisions of PSA when he was already
booked in substantive offences under various F.I.Rs and was in the
custody of the respondents. The petition, on this ground alone,
deserves to be allowed and, as a consequence thereof, the order of
detention is liable to be quashed.
03/ In the counter affidavit, the respondents have pleaded that the
order of detention has been passed after taking into consideration the
relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The
grounds of detention have been conveyed to the detenue in the
language with which he is conversant and these have been read over
and explained to him. Therefore, the order of detention does not suffer
from any vice. It has been passed with due diligence and it will
sustain in the eyes of the law. The arguments of the learned counsel
for the respondents are in tune and in line with the pleadings of the
respondents.
04/ Heard and considered.
05/ As already stated, the impugned order of detention has been
challenged chiefly, on the ground that the detenue could not have been
detained under the provisions of PSA when he was already booked
in substantive offences in various F.I.Rs including F.I.R No.
272/2016 u/s 17, 18-B, 19 ULA (P) Act, F.I.R No. 283/2016 u/s 13
ULA (P) Act, F.I.R No. 152/2016 u/s 307, 148, 149, 336, 332, 353
RPC, registered at Police Station, Baramulla. The detenue was
already in the custody of the respondents at the time of passing of the
impugned order of detention.
06/ Preventive detention, as has been held in the cases of
A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha
vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature,
repugnant to democratic ideas and an anathema to the rule of law. The
Supreme Court in Rekha's case (supra) emphasized that article
22 (3) (b) of the Constitution of India is to be read as an exception
to article 21 of the Constitution of India and not allowed to nullify the
right to personal liberty guaranteed under article 21. The Supreme
Court further observed that since article 22(3)(b) of the Constitution
of India permits preventive detention, we cannot hold it illegal but we
must confine the power of preventive detention within very narrow
limits, otherwise we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India which was won
after long, arduous, historic struggles. It has, therefore, to be
understood that if the ordinary law of the land (India Penal Code and
other penal statutes) can deal with a situation, recourse to a preventive
detention law will be illegal. The Supreme Court added that it must
be remembered that if, in the case of preventive detention, no offence
is proved and there is no conviction, which can only be sanctioned by
legal evidence, preventive detention is often described as "jurisdiction
of suspicion." To prevent misuse of this potentially dangerous power
the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however,
technical, is, in our opinion, mandatory and vital. The Supreme Court,
after putting reliance on the law laid down in Kamleshwar Ishwar
Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49)
observed that the history of liberty is the history of procedural
safeguards. These procedural safeguards are required to be zealously
watched and enforced by the Court and their rigor cannot be allowed
to be diluted on the basis of the nature of alleged activities of the
detenue. The Supreme Court quoted with approval the observation
made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC,
emphasizing the need to ensure that the constitutional and statutory
safeguards available to a detenue are followed in letter and spirit. It
observed, 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.
07/ The procedural requirements are the only safeguards
available to a detenue since the Court is not expected to go
behind the subjective satisfaction of Detaining Authority. As laid
down by the Apex Court in the case of Abdul Latif Abdul Wahab
Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, 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.
08/ Looking at the instant case from the above perspective, the
aforementioned F.I.Rs were registered against the detenue at Police
Station, Baramulla, and as already stated, he was in the custody of the
respondents at the time of the passing of the impugned order of
detention, These F.I.Rs form the baseline of the fresh order of the
detention of the detenue.
09/ The question for consideration is, can an order of detention be
passed on the face of what has been detailed above. The answer to
this question can be a big "No" taking into consideration the law laid
down by the Apex Court of the Country in para 24 sub para (6) of the
judgment delivered in the case of Sama Aruna Vs. State of Telangana
and another, reported in AIR 2017 SC 2662, which reads as under:-

"6. On a reading of the grounds, particularly the paragraph
which we have extracted above, it is clear that the order of
detention was passed as the detaining authority was apprehensive
that in case the detenue was released on bail he would again carry
on his criminal activities in the area. If the apprehension of the
detaining authority was true, the bail application had to be
opposed and in case bail was granted, challenge against that
order in the higher forum had to be raised. Merely on the ground
that an accused in detention as an under trial prisoner was likely
to get bail an order of detention under the National Security Act
should not ordinarily be passed."

10/ The same view has been repeated and reiterated by the
Hon'ble Supreme Court in paragraph 13 of the judgment delivered in
the case of V.Shanta Vs. State of Telangana and others, reported in
AIR 2017 SC 2625, that reads as follows:
"13. The order of preventive detention passed against the detenue
states that his illegal activities were causing danger to poor and
small farmers and their safety and financial well being. Recourse
to normal legal procedure would be time consuming and would
not be an effective deterrent to prevent the detenu from indulging
in further prejudicial activities in the business of spurious seeds,
affecting maintenance of public order, and that there was no
other option except to invoke the provisions of the Preventive
Detention Act as an extreme measure to insulate the society from
his evil deeds. The rhetorical incantation of the words "goonda"
or "prejudicial to maintenance of public order" cannot be
sufficient justification to invoke the draconian powers of
preventive detention. To classify the detenue as a "goonda"
affecting public order, because of inadequate yield from the chilli
seed sold by him and prevent him from moving for bail even is a
gross abuse of the statutory power of Preventive Detention. The
grounds of detention are ex facie extraneous to the Act."

Case No: OWP /2017 Dated : 18th of Sept, 2018
MU VERSU S STATE AND ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. A
FOR THE RESPONDENT/s: MR. S
(ORAL)

Notice returnable within four weeks.
Notice in the MP also returnable within the same period.
Mr. S.A.Makroo, learned advocate, appeared for caveator -
Javaid Ahmad Bhat and waived notice on his behalf.
Caveat 2379/2017 is, accordingly, discharged.
Mr. Makroo shall be at liberty to file objections, if any, on
behalf of the caveator by next date of listing.
List immediately after service is complete.

TARIQ Mota
SRINAGAR.
18-09-2018 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: SWP /2017 Dated : 26th of June 2018
MO VERSUS STATE AND ORS .
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. N
FOR THE RESPONDENT/s: . MR. R
(M.K.HANJURA)

1/ The res

TARIQ Mota
SRINAGAR.
26-06-2018 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : MP 01/2017 in WP /2015
FAR VERSUS STATE AND ORS.

MR. FOR PETITIONER.
NONE FOR THE RESPONDENT/s.

The petitioners have moved this application for withdrawal of
writ petition with liberty to file afresh, if need arises.
For the reasons mentioned and grounds stated, application is
allowed. Writ petition ( WP /2015) is dismissed as withdrawn along
with connected IAs with liberty aforementioned. Interim direction, if
any, shall stand vacated.
TARIQ Mota
SRINAGAR.
26-06--2018 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : HC /2017
TAN VERSUS STATE AND ORS.

MR. FOR PETITIONER.
MR. ASIF MAQBOOL, GA, FOR THE RESPONDENT/s.

Learned counsel for the respondents seeks and is granted two
weeks' time as last opportunity to file the Counter Affidavit. The
record pertaining to the detention of the detenue shall also be made
available to this Court on the next date of hearing without any fail.
List immediately after the vacations.

TARIQ Mota
SRINAGAR.
26-06-2017 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : HC /2017
MUB VERSUS STATE AND ORS.

MR. FOR PETITIONER.
NONE FOR THE RESPONDENT/s.

Heard.
Admit.

Issue notice returnable within two weeks.
List immediately thereafter.

TARIQ Mota
SRINAGAR.
27-10-2017 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : HC /2017
FAH VERSUS STATE AND ORS.

MR. FOR PETITIONER.
MR. ASIF MAQBOOL, GA, VICE MR. B.A.DAR, AAG FOR THE RESPONDENT/s.

Learned proxy counsel for the respondents seeks and is granted
a week's time to file the reply.
List immediately thereafter. In the meantime Compliance
Report, in the light of the earlier order of the Court, shall also be filed.

TARIQ Mota
SRINAGAR.
27-10-2017 (M.K.HANJURA)
JUDGE
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : SWP /2017
INSP VERSUS STATE AND ORS.

MR. BHAT FOR PETITIONER.
MR. AAG, FOR THE RESPONDENT/s.

Notice returnable within four weeks.
Notice in the MP also returnable within the same period.
Mr. Dar, learned Sr.AAG, appeared and waived the notice.
Objections within a week's time.
In the meantime respondent No.2 to consider the application
of the petitioner, if any filed, within a week's time.

TARIQ Mota
SRINAGAR.
27-10-2017 (M.K.HANJURA)
JUDGE

HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : CONT. /2017 c/w OWP /2017
M VERSUS SHAHNAZ GONI

MR. FOR PETITIONER.
NONE FOR THE RESPONDENT/s.

Notice.
Statement of Facts/Compliance Report to be filed within a
period of three weeks.
List immediately thereafter.
TARIQ Mota
SRINAGAR.
27-10-2017 (M.K.HANJURA)
JUDGE
LATE EXECUTION OF DETENTION ORDER
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: HC(p) /2017 Dated : 09TH AUG., 2017
SH VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. MIR
FOR THE RESPONDENT/s: . NONE
(M.K.HANJURA-J)

01/ One Mr. has been detained by dint of order bearing No.
PSA/DET/2016 dated 17th of August, 2016 passed by the respondent
No.2 - District Magistrate, Anantnag, in exercise of powers vested in
him under clause (a) of section (8) of the Jammu & Kashmir Public
Safety Act, 1978 (for short Act of 1978). The order of detention was
executed on 04th of July, 2017 and the detenue was lodged at District
Jail, Kathua.
02/ In the reply affidavit filed by the respondents, it is stated that
he grounds of detention were read over, explained and served to the
detenue along with a communication No. 445-51/DMA/PSA/JC/2016
dated 17th of August, 2016, informing him about his preventive
detention and that he is at liberty to file a representation to the
Government against his detention, which he has not done.
04/ The order of detention has been challenged before this Court
on various grounds. The main plank of the pleadings & the argument
of the learned counsel for the petitioner is that although the order of
detention has been passed on 17-08-2016, yet the same has been
executed on 04-07-2017, i.e. after a lapse of more than ten months,
which is an infraction of the provisions of law and the order of
detention, impugned herein, is liable to be set aside on this count
alone.
05/ Heard and considered.
06/ The detenu has been detained in pursuance of the detention
order bearing No. 23/DMA/PSA/DET/2016 dated 17.08.2016.The
order of the detention, it is stated was ordered to prevent the detenu
from acting in a manner prejudicial to the maintenance of public
order. It is stated in the reply affidavit filed by the respondents that
the said warrant was forwarded to SSP, Anantnag in duplicate for
execution u/s 9 of the Jammu and Kashmir Public Safety Act, 1978. It
is further stated that pursuant to the above detention order, the warrant
was executed through Sub Inspector Altaf Rashid (No. 98/ PAU PID
No. 115612) of P/S Dooru of DPL Anantnag. He took the custody of
the detenu and on 04.07.2017, he handed over the detenu to the Dy.
Superintendent District Jail, Kathua, who took the custody of the
detenu against a proper receipt and lodged him in the said jail.
07/ From the above, what comes to the fruition is that the order of
the detention was passed on 17.08.2016 and it was executed on
04.07.2017, i.e. after a period of more than ten months. The effect of
the execution of the warrant after such long delay has been considered
by the Supreme Court of India in the case of "Adishwar Jain v Union
of India and Another" reported in (2006) 11 Supreme Court Cases
339. Para 14 of the Judgment which is germane is the context of the
decision of the instant petition is reproduced below:
"14. The question came up for consideration
recently in Rajinder Arora V. Union of India wherein it has
been held: (SCC pp. 802-03, paras 20-22).
"20. Furthermore no explanation whatsoever has
been offered by the respondent as to why the order of
detention has been issued after such a long time. The said
question has also not been examined by the Authorities
before issuing the order of detention.
21. The question as regards delay in issuing the
order of detention has been held to be a valid ground for
quashing an order of detention by this Court in T.A. Abdul
Rehman v. State of Kerala stating: (SCC pp. 748-49 paras
10.11)
10. The conspectus of the above decisions can be
summarized thus: The question, whether the prejudicial
activities of a person necessitating to pass an order of
detention is proximate to the time when the order is made
or the live-link between the prejudicial activities and the
purpose of detention is snapped depends on the facts and
circumstances of each case. No hard-and-fast rule can be
precisely formulated that would be applicable under all
circumstances and no exhaustive guidelines can be laid
down in that behalf It follows that the test of proximity is
not a rigid or mechanical test by merely counting number
of months between the offending acts and the order of
detention. However when there is undue and long delay
between the prejudicial activities and the passing of
detention order, the court has to scrutinize whether the
detaining authority has satisfactorily examined such a
delay and afforded a tenable and reasonable explanation
as to why such a delay has occasioned, when called upon
to answer and further the court has to investigate whether
the causal connection has been broken in the
circumstances of each case.
11. Similarly when there is unsatisfactory and unexplained
delay between the date of order of detention and the date of
securing the arrest of the detenu, such a delay would throw
considerable doubt on the genuineness of the subjective
satisfaction of the detaining authority leading to a
legitimate inference that the detaining authority was not
really and genuinely satisfied as regards the necessity for
detaining the detenu with a view to preventing him from
acting in a prejudicial manner.
22. The delay causes in this case in issuing the order of
detention has not been explained. In fact no reason in that
behalf whatsoever has been assigned at all."

08/ The same view has been repeated and reiterated by the Apex
Court in {Cr. Appeal No. 1187/2012 arising out of S.L.P (CRL) No.
6985/2008} bearing the title "Saeed Zakir Hussain Malik Vs. State of
Maharashtra & Ors". Para 22 of the law cited above has a direct
bearing on the subject matter in issue and it lays down as under:
"22. It is clear that if there is unreasonable delay in
execution of the detention order the same vitiates the order
of detention. In the case on hand, though the detenu was
released on bail on 11.11.2005 the detention order was
passed only on 14.11.2006 actually, if the detenu was
absconding and was not available for the service of the
detention order, the authorities could have taken steps for
cancellation of the bail and for forfeiture of the amount
deposited. Admittedly no such recourse has been taken. If
the respondents were really sincere and anxious to serve
the order of detention without any delay, it was expected of
them to approach the court concerned which granted bail
for its cancellation by pointing out that the detenu had
violated the conditions imposed and thereby enforce his
appearance or production as the case may be. Admittedly,
no such steps were taken instead it was explained that
several attempts were made to serve copy by visiting his
house on many occasions".

09/ Taking a cue from the law cited above what can be said is that
there is a huge and an unconscionable delay of more than ten months
in the execution of the detention order. This cuts at the root of the case.
It vitiates the order of detention, particularly so when there is not a
whisper that the detenu was at large and was not available during the
period intervening between the date of passing of order and its
execution.
10/ In the backdrop of what has been said and done above, the
petition is allowed, as a consequence of which, the order of detention
bearing No. dated 17th of August, 2016, passed by the respondent
No.2 - District Magistrate, Anantnag, is quashed with a further
direction to the respondents to release the person of Shabir S/O ,
R/O forthwith from the preventive custody.
11/ The petition is, accordingly, disposed of along with
connected IAs.
TARIQ Mota
SRINAGAR.
09 -08-2017 (M.K.HANJURA)
JUDGE
Making effective representation
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: HC(p) /2017 Dated : AUG., 2017
BAS VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
iii. Whether to be approved for
reporting in NET : Yes/No
iv. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. N
FOR THE RESPONDENT/s: . MR. ASIF MAQBOOL, GA
(M.K.HANJURA-J)

1/ One Mr. , appears to have been detained by dint of
order bearing No. /DMB/ PSA/2017 dated , 2017, passed by
the respondent No.2 - District Magistrate, Baramulla, in exercise of
powers vested in him under clause (a) of section (8) of the Jammu &
Kashmir Public Safety Act, 1978 (for short Act of 1978). The order
of detention was executed on 22nd January, 2017 and the detenue
was lodged at Central Jail, Kot Balwal, Jammu, and continues to be
so at the moment. The respondent No.2 - District Magistrate
Baramulla, endorsed a copy of the order of detention dated 18 th
January, 2017 to the Home Department for approval as envisaged
under sub section (4) of Section (8) of the Act of 1978 and the
Government, in purported exercise of powers, conferred by section
(8) of the Act of 1978, accorded approval to the order of detention
aforementioned on 28th January, 2017. The grounds of
detention, along with the allied documents, are also said to have been
served on the detenue.
2/ The order of detention has been challenged before this Court
on various grounds. The main plank of the pleadings & the argument
of the learned counsel for the petitioner is that in terms of his
communication dated 18th January, 2017, the respondent No.2, while
informing the detenue of his detention under the provisions of the Act
of 1978, also informed him that he can make a representation to the
Home Department against the said detention order, if he so desires.
The respondent No.2 has not, however, informed the detenue that he
can make a representation to the Detaining Authority and this
infraction renders the order of detention liable to be set aside. The
respondents have pleaded in their Counter affidavit that the grounds
of detention were read over, explained to him in the language which
he understood fully well and served to the detenue and he was told
that he has a right to make a representation to the Government against
the order of his detention, which, it appears, has not been filed by
him. The arguments have also been advanced on similar lines.
3/ Heard and considered. The detention record has also been
perused.
4/ In order to find an answer to the question raised by the learned
counsel for the petitioner in his argument, buttressed with his
pleadings that the detenue has been deprived of his right to make a
representation against his order of detention to the respondent No.2,
the order of detention, impugned herein, requires appraisal and it is
reproduced below verbatim et literatim :
"Whereas Sr. Superintendant of police Sopore vide his No.
PROSS/PSA/2017/258 dated 04-01-2017 has produced material
record, such as dossier and other connected documents in respect
of Bashir Ahmad Dar @ Shaban Dar S/O Mohammad Ismail Dar
R/O Naseem Bagh Krankshivan Colony Sopore, District,
Baramulla .
Whereas, I District Magistrate Baramulla, have perused the
contents and recommendations mentioned in the dossier carefully,
produced before me in respect of the said person.
Whereas, I am satisfied that with a view to prevent Bashir
Ahmad Dar @ Shaban Dar S/O Mohammad Ismail Dar R/O
Naseem Bagh Krankshivan Colony Sopore, District, Baramulla

from acting in any manner in the activities which is a threat to the
maintenance of public order and warrant immediate
measures to be taken against the subject to stop him from
indulging in such activities which disturb the peace and public
order.
Now, therefore, in exercise of powers conferred by clause (a)
of section 8 of J&K Public Safety Act, 1978, I, District Magistrate
Baramulla, hereby direct that the aforesaid person be detained
and lodged in Central Jail, Kotebhulwal, for a period to be
specified by the Government."

5/ In the grounds of detention served on the detenue by the
respondent No.2, he has been informed that you (the detenue) have a
right of making a representation to the Government in the Home
Department against your detention, if you so choose.
6/ To substantiate his argument that the detenue has been deprived
of his right to make an effective representation against the order of
detention by not informing him that he can make a representation to
the detaining authority, which has the effect of vitiating the order of
detention, the learned counsel for the petitioner has placed explicit
reliance on the law laid down by the High Court of Jammu &
Kashmir vide order dated 09th June, 2017 passed in the case of Tariq
Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the
relevant excerpts of which are reproduced below :
"6. The submission of the learned counsel for the appellant is that prior to
Government's approval of the Detention order, which is to be done within 12
days of the detention order, in terms of Section 8 (4) of the J&K Public Safety
Act, 1978, the detaining authority also has the power to revoke the detention
order. This power is clearly relatable to Section 21 of the General Clauses
Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K
Public Safety Act, 1978. It was further submitted that till the Government's
approval of the Detention order is granted, since the Detaining Authority had
the power to revoke the detention order, a representation could have been
made to the Detaining Authority for revoking the detention order. Therefore,
according to the learned counsel for the appellant, it was incumbent upon the
Detaining Authority to have informed the detenu that he could also make a
representation to him (the Detaining Authority), if he so desired. It was further
contended that since the Detaining Authority did not communicate to the
detenu that such a representation could be made to the Detaining Authority,
this in itself amounted to infraction of the provisions of Section 13 of the
Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the
Constitution of India. In support of his submission, he placed reliance on a
Supreme Court decision in the case of State of Maharashtra and ors v.
Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria
provisions of the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981,
were considered by the Supreme Court. In that case also the Supreme Court
came to the conclusion that non-communication of the fact that the detenu
could make a representation to the Detaining Authority would constitute an
infraction of a valid constitutional right guaranteed to the detenu under Article
22(5) of the Constitution of India and such failure would make the order of
detention invalid.
7. On the strength of this decision of the Supreme Court, the learned
counsel for the appellant submitted that the detention order in the present
case also became invalid because of the non-communication of the fact
that the detenu could make a representation to the Detaining Authority till
the Government had approved the detention order.
8. The learned counsel for the respondents however submitted that all the
technical requirements had been complied with and, particularly of
Section 13, which required that the earliest opportunity of making a
representation be provided to the detenu. He submitted that the
communication dated 22.12.2016, issued by the District Magistrate,
Baramulla, made it abundantly clear to the detenu that he could make a
representation to the Home Department of the Government, if he so
desired. Consequently, it was submitted that what was required to be
done under Section 13 of the J&K Public Safety Act, 1978 and
Constitution of India under Article 22(5) thereof, had been done and,
therefore, the detention order cannot be regarded as having become
invalid. He further submitted that in any event, the detenu had not even
availed the right of making the representation to the Government even
after the approval of the Government was granted on 28.12.2016.
Therefore, according to the learned counsel for the respondents, the
detention order cannot be held to be invalid on the ground urged by the
learned counsel for the appellant.
9. Section 8 of the Jammu and Kashmir Public Safety
Act, 1978, and, in particular, sub Section (2) thereof,
provides that a detention order can be passed by inter alia a
District Magistrate. Sub-Section (4) of Section 8 of the said
Act stipulates that when any order is made under the said
Section by a person 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 of the
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. This clearly implies that
though the District Magistrate can make a detention order,
such detention order requires to be approved by the
Government not later than 12 days from the date of the
order. Section 19 of the Jammu and Kashmir Public Safety
Act, 1978, reads as under:- "19. Revocation of detention
orders.-
(1) Without prejudice to the provisions of section 21 of
the General Clauses Act, Smvat 1977, a detention
order may, at any time, be revoked or modified by the
Government, notwithstanding that the order has been
made by any officer mentioned in sub- section (2) of
section 8.

(2) There shall be no bar to making of a fresh order of
detention against a person on the same facts as an
arlier order of detention made against such person in
any case where -

(i) the earlier order of detention or its continuance is not
legal on account of any technical defect or

(ii) the earlier order of detention has been revoked by
reason of any apprehension, or for avoiding any
challenge that such order or its continuance is not legal
on account of any technical defect

Provided that in computing the maximum period for
which a person against whom such fresh order of
detention has been issued may be detained, the period
during which such person was under the earlier order
of detention shall be excluded."

10. Sub-Section (1) clearly indicates that without prejudice to the
provisions of Section 21 of the General Clauses Act, Samvat 1977, a
detention order may, at any time be revoked or modified by the
Government notwithstanding that the order has been made by the Officer
mentioned in sub-section (2) of Section 8 of the Act. What sub-section (1)
of Section 19 provides is that, apart from the Detaining Authority, the
Government is also entitled to revoke or modify the detention order made
by the Detaining Authority, who happens to be inter alia a District
Magistrate. It also implies that till the approval is granted by the
Government under Section 8 (4), the Detaining Authority retains
jurisdiction to revoke the detention order in terms of Section 21 of the
General Clauses Act, Samvat 1977. The said Section 21 reads as under:-
" 21. Power to make, to include power to add to,
amend, vary or rescind, orders, rules or bye-laws.
Where, by an Act or Regulation, a power to issue
notifications, orders, rules or bye-laws is conferred,
then that power includes a power, exercisable in the
like manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or rescind
any notifications, orders, rules or bye-laws so issued."

11. It is further evident that till the Government grants approval to the
detention order in terms of Section 8(4) of the Jammu and Kashmir
Public Safety Act, 1978, the Detaining Authority has the power to add
to, amend, vary or rescind inter alia any order issued by him which
includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh
Shankar Acharya (supra), we find that that the relevant provisions of the
Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 are in
pari materia to the provisions of the Jammu and Kashmir Public Safety
Act, 1978. For example, Section 3 of the Maharashtra Act is almost
identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act
corresponds to Section 13 of the J&K Act and, similarly Sections 14 and
21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K
Act.
13. The Supreme Court in the said decision was considering the case
which had arisen from a Full Bench decision of the Bombay High Court.
The question before the Full Bench of Bombay High Court had been one
which had been referred for its decision and that was -- whether in case
of an order of detention by an officer under Section 3(2) of the said
Maharashtra Act, non-communication to the detenu that he has a right of
making a representation to the detaining authority constituted an
infraction of a valuable right of the detenu under Article 22(5) of the
Constitution and, as such, vitiated the order of detention? This question
was answered in the affirmative, meaning that unless and until the detenu
was communicated that he has a right to make a representation to the
Detaining Authority, there would be an infraction of the Constitutional
right under Article 22(5) of the Constitution of India and the detention
order would be vitiated.

14. The Supreme Court, after considering the Constitutional Bench
decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4
SCC 51, came to the conclusion that until the detention order is
approved by the State Government, the Detaining Authority can
entertain the representation from the detenu in exercise of powers of the
Bombay General Clauses Act and annul revoke or modify the order, as
is provided under Section 14 of the Maharashtra Act. The Supreme
Court held that, 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 the order of detention is issued by an
officer other than the State Government under Section 3(2) of the
Maharashtra Act would constitute an infraction of a valuable right of the
detenu under Article 22(5) of the Constitution and that the ratio of the
Constitution Bench decision in case of Kamleshkumar's case (supra)
would apply notwithstanding the fact that in Kamleshkumar's case
(supra) the Court was dealing with an order of detention issued under
the provisions of COFEPOSA Act. Ultimately the Supreme Court held
as under:-
"This being the position, it goes without saying that even
under the Maharashtra Act a detenu will have a right to
make a representation to the detaining authority so long as
the order of detention has not been approved by the State
Government and consequently non-communication of the
fact to the detenu that he has a right to make representation
to the detaining authority would constitute an infraction of
the valuable constitutional right guaranteed to the detenu
under Article 22(5) of the Constitution and such failure would
make the order of detention invalid. We, therefore, see no
infirmity with the impugned judgment of the Full Bench of the
Bombay High Court to be interfered with by this Court.
These appeals accordingly fail and stand dismissed."
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 Section 13 of the Jammu and Kashmir Public Safety Act,
1978. Failure of such non-communication 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."

7/ The judgement cited above is lucid and clear (or write .....has a
pellucid simplicity) and applying its ratio to the facts of the instant
case, what can be said is that it is an open and shut case of the
deprivation of an inalienable right of the detenue, inasmuch as, he
has not been informed that he can make a representation to the
Detaining Authority till such time that the detention order is not
approved by the Government. This permitted no option as it is a right
guaranteed under article 22(5) of the Constitution of India and
section 13 of the Act of 1978. It is incapable of being taken away and
the failure, in providing this information to the detenue, has the
effect of invalidating the order of detention.
8/ In the backdrop of what has been said and done above, the
petition is allowed, as a consequence of which, the order of
detention bearing No. ________ dated _____ 2017, passed by the
respondent No.2 - District Magistrate, _____, is quashed with a
further direction to the respondents to release the person of ______
forthwith from the preventive custody.
9/ The petition is, accordingly, disposed of along with connected
IAs. Registry to return the record to the learned counsel for the
respondents.
TARIQ Mota
SRINAGAR.
-08-2017 (M.K.HANJURA)
JUDGE

EFFECTIVE REPRESENTATION AND
ALREADY BOOKED IN SUBSTANTIVE
OFFENCE IN FIRs
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: HC(p) 286/2017 Dated : of Nov., 2017
GHULAM AHMAD PARRAY VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
iii. Whether to be approved for
reporting in NET : Yes/No
iv. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. M.A.QAYOOM
FOR THE RESPONDENT/s: . MR. Q.R.SHAMAS, Dy.AG
(M.K.HANJURA-J)

01/ The detenue - Ghulam Ahmad Parray, was earlier on detained
by the respondent No.2 in terms of detention order bearing No.
53/DMB/PSA/2016 dated 25-11-2016. The said order was challenged
before this Court by the medium of HC(P) 677/2016 and after
allowing the writ petition on 10-03-2017, the order of detention was
quashed by this Court and the respondents were directed to release
the person of the detenue forthwith. Learned counsel has stated that
when the said order was served on the respondents, the detenue was
released from detention. However, he was re-arrested immediately in
the jail premises itself and kept confined in the lockup of police
station Hajin. Learned counsel submits that the detenue was not
produced before any Court of law till such time that he was shifted
to Kotebalwal Jail, Jammu, in terms of another order of detention,
passed by the respondent No.2 - District Magistrate, Bandipora,
bearing No. 13/DMB/PSA of 2017 dated 18-07-2017, impugned
herein. in exercise of powers vested in him under clause (a) of
section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for
short Act of 1978). The detenue continues to be in Central Jail
Kotebalwal, Jammu, at the moment. The order of detention was
executed on 23rd of July, 2017. The grounds of detention, along with
the allied documents, are said to have been served on the detenue
and the contents whereof, as contended, have been read over and
explained to him in the language which he understood fully well.
02/ The order of detention has been challenged on the grounds,
inter alia, that the detenue has been deprived of the right to file an
effective representation before the Detaining Authority, i.e. the
District Magistrate, Bandipora, against his order of detention. It is
also argued that the detenue could not have been detained under the
provisions of PSA when he was already booked in substantive
offences under various F.I.Rs. Learned counsel for the petitioner has
argued that the respondents, in their reply affidavit, have stated that
the detention warrant was executed on 23-07-2017 by one SI Ghulam
Nabi No.1862/S 781577/EXK of police station, Hajin, who read over
and explained the contents of the same to the detenue. Assuming the
contention to be correct, the said ASI ought to have filed an affidavit
to substantiate so, which has not been done in the case on hand.
The petition, on this ground alone, deserves to be allowed and, as a
consequence thereof, the order of detention is liable to be quashed.
03/ Learned counsel for the respondents has argued that the order
of detention has been passed after taking into consideration the
relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The
grounds of detention have been conveyed to the detenue in the
language with which he is conversant and these have been read over
and explained to him at the place of his detention, i.e. Central Jail, Kot
Bhalwal. Therefore, the order of detention does not suffer from any
vice. It has been passed with due diligence and it will sustain in the
eyes of the law. The arguments of the learned counsel for the
respondents are in tune and in line with the pleadings of the
respondents.
04/ Heard and considered. The detention record has also been
perused.
05/ As already stated, the impugned order of detention has been
challenged chiefly, on the ground that the detenue could not have been
detained under the provisions of PSA when he was already booked
in substantive offences in case bearing F.I.R No. 63/2016 u/s 148,
149, 353, 336, 307, 332 & 152 RPC registered at Police Station Hajin.
The detenue was arrested on 11-06-2017 in case bearing F.I.R No.
49/2016 u/s 13 ULA(P) Act, of police station Hajin, and was on
judicial remand at Sub Jail, Baramulla, when the impugned order
dated 18-07-2017 was passed.
06/ Preventive detention, as has been held in the cases of
A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha
vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature,
repugnant to democratic ideas and an anathema to the rule of law. The
Supreme Court in Rekha's case (supra) emphasized that article
22 (3) (b) of the Constitution of India is to be read as an exception
to article 21 of the Constitution of India and not allowed to nullify the
right to personal liberty guaranteed under article 21. The Supreme
Court further observed that since article 22(3)(b) of the Constitution
of India permits preventive detention, we cannot hold it illegal but we
must confine the power of preventive detention within very narrow
limits, otherwise we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India which was won
after long, arduous, historic struggles. It has, therefore, to be
understood that if the ordinary law of the land (India Penal Code and
other penal statutes) can deal with a situation, recourse to a preventive
detention law will be illegal. The Supreme Court added that it must
be remembered that if, in the case of preventive detention, no offence
is proved and there is no conviction, which can only be sanctioned by
legal evidence, preventive detention is often described as "jurisdiction
of suspicion." To prevent misuse of this potentially dangerous power
the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however,
technical, is, in our opinion, mandatory and vital. The Supreme Court,
after putting reliance on the law laid down in Kamleshwar Ishwar
Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49)
observed that the history of liberty is the history of procedural
safeguards. These procedural safeguards are required to be zealously
watched and enforced by the Court and their rigor cannot be allowed
to be diluted on the basis of the nature of alleged activities of the
detenue. The Supreme Court quoted with approval the observation
made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC,
emphasizing the need to ensure that the constitutional and statutory
safeguards available to a detenue are followed in letter and spirit. It
observed, 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.
07/ The procedural requirements are the only safeguards
available to a detenue since the Court is not expected to go
behind the subjective satisfaction of Detaining Authority. As laid
down by the Apex Court in the case of Abdul Latif Abdul Wahab
Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, 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.
08/ Looking at the instant case from the above perspective,
case FIR NOs. 63/2016 & 49/2016 were registered against the
detenue at Police Station Hajin. On 11-06-2017, he was arrested by
the authorities of Police Station, Hajin, in case bearing FIR No.
49/2016 and at the time of the passing of the impugned order of
detention, he was in the custody of the respondents. These F.I.Rs form
the baseline of the order of the detention of the detenue. The
relevant extract of the grounds of the detention, which are necessary
to the decision of this petition, need consideration and these are as
under :
"............You have been arrested by police station Hajin
on 11-06-2017 in case FIR No. 49/2016 u/s 13 ULA and are
presently on judicial remand at Sub Jail Baramulla. There is every
likelihood and possibility that you may seek bail in the instant
case and in case you are released on bail your activities will
prove detrimental to the peace and tranquility in the area. Besides
your remaining at large will have adverse effect on the peaceful
atmosphere as well as law and order situation in Hajin area......."

09/ The question for consideration is, can an order of detention be
passed on the face of what has been detailed above. The answer to
this question can be a big "No" taking into consideration the law laid
down by the Apex Court of the Country in para 24 sub para (6) of the
judgment delivered in the case of Sama Aruna Vs. State of Telangana
and another, reported in AIR 2017 SC 2662, which reads as under:-

11/ Testing the case on hand on the touchstone of the law
laid down above, the detenue could not have been detained after
taking recourse to the provision of PSA, when he was involved in
the commission of substantive offences in which he was arrested
and had not applied for bail. The proper course would have been
to challenge the order of bail, if granted to him. The detenue could
not have been detained preventatively. This single infraction renders
the order of detention liable to be set aside. Moreso, the order of
detention appears to have been passed on surmises, conjectures and
repetition of the earlier grounds, questioned in the earlier writ
petition, which is bad in law.
12/ The learned counsel for the petitioner has argued that the
officer, who handed over the detenue to the jail authorities of the
Central Jail, Kotebalwal, along with the relevant documents, should
have filed an affidavit in the mater, which has not been done. From
a bare glimpse of the execution report, what gets revealed is that the
detention warrant has been executed on 23-07-2017 at Central Jail,
Kot Bhalwal, Jammu. It also states that the contents of the detention
warrant and the grounds of detention were read over to the detenue
in English language and were also explained to him in
urdu/kashmiri languages, which languages he understood fully well
and in token thereof, his signature was attained on the execution
report itself. To eradicate all doubts, it was incumbent on the part of
the officer, namely, SI Ghulam Nabi, who did the exercise of
handing over the documents and conveying the contents thereof to
the detenue, to file an affidavit in order to attach, at least, a
semblance of fairness to his statement. Resort can, in this behalf, be
had to the law laid down by the apex Court of the country in the case
of State Legal Aid Committee, J&K versus State of J&K & others,
reported in AIR 2005 SC 1270, wherein it has been held as under :
"1/ Though several questions have been raised in this petition, it
is not necessary to deal with them in detail as we find that there is
no definite material to show that the requirements of section 13 of
the Jammu & Kashmir Public Safety Act, 1978, (in short the Act),
requiring the grounds of order of detention to be
disclosed/communicated to the person affected by the order has
been complied with. Though in the affidavit filed by the State, it
has been stated that the contents of the warrants and grounds of
detention were served, read over and explained to the assesse and
he was informed about his right to make a representation against
the detention, if he so desired, there is no material placed on
record to substantiate this stand. It is stated in the affidavit that
the detenue refused to receive copy of the detention order and also
refused to put his signatures on the documents. The least the State
could have done is to file an affidavit of the person who wanted to
serve the relevant documents and an endorsement to the effect that
there was refusal. Even the name of the official has not been
indicated in the affidavit. That would have been sufficient to
comply with the requirements of section 13 of the Act."

13/ Vide letter No. DMB/PSA/2017/150-52 dated
18-07-2017, of the District Magistrate, Bandipora, addressed to the
detenue, the detenue has been informed that he may make a
representation to the Government against the said detention order, if
he so desires. In the grounds of detention, alleged to have been served
on the detenue, has been told that he has a right of making the
representation against the order of detention, if he chooses so. There
is no material from which it can be discerned that the detenue was
ever apprised that he has a right to make a representation to the
Detaining Authority. This vitiates the detention order. A cue can be
had in this behalf from the law laid down by the High Court of
Jammu & Kashmir vide order dated 09th June, 2017 passed in the
case of Tariq Ahmad Dar versus State of J&K and others (LPA No.
43/2017), the relevant excerpts of which are reproduced below :
"6. The submission of the learned counsel for the appellant is that prior to
Government's approval of the Detention order, which is to be done within 12 days of
the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the
detaining authority also has the power to revoke the detention order. This power is
clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has
been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further
submitted that till the Government's approval of the Detention order is granted, since
the Detaining Authority had the power to revoke the detention order, a representation
could have been made to the Detaining Authority for revoking the detention order.
Therefore, according to the learned counsel for the appellant, it was incumbent upon
the Detaining Authority to have informed the detenu that he could also make a
representation to him (the Detaining Authority), if he so desired. It was further
contended that since the Detaining Authority did not communicate to the detenu that
such a representation could be made to the Detaining Authority, this in itself
amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir
Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support
of his submission, he placed reliance on a Supreme Court decision in the case of
State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463,
wherein pari meteria provisions of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act,
1981, were considered by the Supreme Court. In that case also the Supreme Court
came to the conclusion that non-communication of the fact that the detenu could
make a representation to the Detaining Authority would constitute an infraction of a
valid constitutional right guaranteed to the detenu under Article 22(5) of the
Constitution of India and such failure would make the order of detention invalid.
10. On the strength of this decision of the Supreme Court, the learned
counsel for the appellant submitted that the detention order in the present
case also became invalid because of the non-communication of the fact
that the detenu could make a representation to the Detaining Authority till
the Government had approved the detention order.
11. The learned counsel for the respondents however submitted that all the
technical requirements had been complied with and, particularly of
Section 13, which required that the earliest opportunity of making a
representation be provided to the detenu. He submitted that the
communication dated 22.12.2016, issued by the District Magistrate,
Baramulla, made it abundantly clear to the detenu that he could make a
representation to the Home Department of the Government, if he so
desired. Consequently, it was submitted that what was required to be
done under Section 13 of the J&K Public Safety Act, 1978 and
Constitution of India under Article 22(5) thereof, had been done and,
therefore, the detention order cannot be regarded as having become
invalid. He further submitted that in any event, the detenu had not even
availed the right of making the representation to the Government even
after the approval of the Government was granted on 28.12.2016.
Therefore, according to the learned counsel for the respondents, the
detention order cannot be held to be invalid on the ground urged by the
learned counsel for the appellant.
12. Section 8 of the Jammu and Kashmir Public Safety
Act, 1978, and, in particular, sub Section (2) thereof,
provides that a detention order can be passed by inter alia a
District Magistrate. Sub-Section (4) of Section 8 of the said
Act stipulates that when any order is made under the said
Section by a person 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 of the
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. This clearly implies that
though the District Magistrate can make a detention order,
such detention order requires to be approved by the
Government not later than 12 days from the date of the
order. Section 19 of the Jammu and Kashmir Public Safety
Act, 1978, reads as under:- "19. Revocation of detention
orders.-

(1) Without prejudice to the provisions of section 21 of
the General Clauses Act, Smvat 1977, a detention
order may, at any time, be revoked or modified by the
Government, notwithstanding that the order has been
made by any officer mentioned in sub- section (2) of
section 8.

(2) There shall be no bar to making of a fresh order of
detention against a person on the same facts as an
arlier order of detention made against such person in
any case where -

(i) the earlier order of detention or its continuance is not
legal on account of any technical defect or

(ii) the earlier order of detention has been revoked by
reason of any apprehension, or for avoiding any
challenge that such order or its continuance is not legal
on account of any technical defect

12. It is further evident that till the Government grants approval to the
detention order in terms of Section 8(4) of the Jammu and Kashmir
Public Safety Act, 1978, the Detaining Authority has the power to add
to, amend, vary or rescind inter alia any order issued by him which
includes a detention order.
12. On examining the Supreme Court decision in the case of Santosh
Shankar Acharya (supra), we find that that the relevant provisions of the
Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 are in
pari materia to the provisions of the Jammu and Kashmir Public Safety
Act, 1978. For example, Section 3 of the Maharashtra Act is almost
identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act
corresponds to Section 13 of the J&K Act and, similarly Sections 14 and
21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K
Act.
19. The Supreme Court in the said decision was considering the case
which had arisen from a Full Bench decision of the Bombay High Court.
The question before the Full Bench of Bombay High Court had been one
which had been referred for its decision and that was -- whether in case
of an order of detention by an officer under Section 3(2) of the said
Maharashtra Act, non-communication to the detenu that he has a right of
making a representation to the detaining authority constituted an
infraction of a valuable right of the detenu under Article 22(5) of the
Constitution and, as such, vitiated the order of detention? This question
was answered in the affirmative, meaning that unless and until the detenu
was communicated that he has a right to make a representation to the
Detaining Authority, there would be an infraction of the Constitutional
right under Article 22(5) of the Constitution of India and the detention
order would be vitiated.

20. The Supreme Court, after considering the Constitutional Bench
decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4
SCC 51, came to the conclusion that until the detention order is
approved by the State Government, the Detaining Authority can
entertain the representation from the detenu in exercise of powers of the
Bombay General Clauses Act and annul revoke or modify the order, as
is provided under Section 14 of the Maharashtra Act. The Supreme
Court held that, 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 the order of detention is issued by an
officer other than the State Government under Section 3(2) of the
Maharashtra Act would constitute an infraction of a valuable right of the
detenu under Article 22(5) of the Constitution and that the ratio of the
Constitution Bench decision in case of Kamleshkumar's case (supra)
would apply notwithstanding the fact that in Kamleshkumar's case
(supra) the Court was dealing with an order of detention issued under
the provisions of COFEPOSA Act. Ultimately the Supreme Court held
as under:-
"This being the position, it goes without saying that even
under the Maharashtra Act a detenu will have a right to
make a representation to the detaining authority so long as
the order of detention has not been approved by the State
Government and consequently non-communication of the
fact to the detenu that he has a right to make representation
to the detaining authority would constitute an infraction of
the valuable constitutional right guaranteed to the detenu
under Article 22(5) of the Constitution and such failure would
make the order of detention invalid. We, therefore, see no
infirmity with the impugned judgment of the Full Bench of the
Bombay High Court to be interfered with by this Court.
These appeals accordingly fail and stand dismissed."
21. 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 Section 13 of the Jammu and Kashmir Public Safety Act,
1978. Failure of such non-communication would invalidate the order of
detention.
22. 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.
23. 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.
24. The appeal is allowed. The impugned order is set aside."

14/ The judgement cited above is lucid and clear and applying its
ratio to the facts of the instant case, what can be said is that it is an
open and shut case of the deprivation of an inalienable right of the
detenue, inasmuch as, he has not been informed that he can make a
representation to the Detaining Authority till such time that the
detention order is not approved by the Government. This permitted no
option as it is a right guaranteed under article 22(5) of the
Constitution of India and section 13 of the Act of 1978. It is
incapable of being taken away and the failure, in providing this
information to the detenue, has the effect of invalidating the order of
detention.
15/ Viewed in the context of all that has been said and done above,
the petition is allowed, as a consequence of which, the order of
detention bearing No. 13/DMB/PSA/2017 dated 18-07-2017 passed
by the respondent No.2 - District Magistrate, Bandipora, is quashed
with a further direction to the respondents to release the person of
Ghulam Ahmad Parray S/O late Abdul Satar Parray R/O Parray
Mohalla, Hajin, District Bandipora, Kashmir, forthwith from the
preventive custody, unless required in any other case.
16/ The petition is, accordingly, disposed of along with
connected IAs. The record shall be returned to the learned counsel
for the respondents.
TARIQ Mota
SRINAGAR.
-11-2017 (M.K.HANJURA)
JUDGE

Taking an overall view
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR

CASE NO. : MP /2017 in CONT. /2017
ABD VERSUS AND ORS.

MR. FOR THE PETITIONER
NONE FOR THE RESPONDENT/s.

Taking an over all view of the matter, this MP is allowed.
Learned counsel for the petitioner is, accordingly, directed to take
steps for effecting service upon the respondents.
CMP disposed of.
List the main case after the service is complete.
TARIQ Mota
SRINAGAR.
-08-2017 (M.K.HANJURA)
JUDGE
wedding
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: OWP /2017 Dated : 03rd Aug., 2017
SHA VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. M
FOR THE RESPONDENT/s: . NONE
(ORAL)

The writ petition is disposed of along with connected IAs
with the direction to the official respondents to ensure that the
petitioners' right to life and liberty, guaranteed under Article 21, of
the Constitution of India, is not interfered with except in accordance
with law.

TARIQ Mota
SRINAGAR.
-08-2017 (M.K.HANJURA)
JUDGE
Taking a cue
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: HC (p) /2017 Dated : of Sept., 2017
RE VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. M
FOR THE RESPONDENT/s: . NONE
(M.K.HANJURA-J)

Heard.
Admit.

Issue notice to the other side returnable within three weeks.
Notice in the CMPs also returnable within the same period.
List immediately after three weeks.
In the meantime, taking a cue from the law laid down by
Hon'ble the Supreme Court in cases titled T.D.Abdul Rehman versus
State of Kerala, reported in AIR 1990 SC 225, Manju Ramesh Nahar
versus Union of India, reported in AIR 1999 SC 2623, Deepak Bajaj
versus State of Maharashtra, reported in AIR 2009 SC 628 and Saeed
Zakir Hussain Malik versus State of Maharashtra and others, reported
in 2012(II) SLJ 226(SC), the order of detention bearing No.
/DMP/PSA/16 dated -09-2016, passed by respondent No. 2, is
stayed till next date of listing before the bench.
This order shall, however, be subject to objections by the other
side.
TARIQ Mota
SRINAGAR.
-09-2017 (M.K.HANJURA)
JUDGE
representation
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: SWP /2017 Dated : 03rd Aug, 2017
IQBAL VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE PETITIONER/s : MR. B
FOR THE RESPONDENT/s: . NONE
(ORAL)

In view of the submissions made by learned counsel for the
petitioner and the nature of controversy involved, the present writ
petition, as prayed for, is treated as representation on behalf of the
petitioner and is disposed of along with connected IAs with a
direction to the respondents to accord consideration to the claim of
the petitioner as reflected in the writ petition within a period of four
weeks from the date copy of this order is served on them.
Needful to be done strictly in accordance with the law and
rules governing the field. It is made clear that it should not be
construed to mean that by passing of this order, the Court has
expressed any opinion in the matter.
TARIQ Mota
SRINAGAR.
-08-2017 (M.K.HANJURA)
JUDGE
Anticipatory bail
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR

Case No: A.Bail /2017 Dated : 21st of Sept, 2017
WAS VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No

FOR THE APPL/PETITIONER/s : MR. S
FOR THE RESPONDENT/s: . NONE
(ORAL)
Taking into consideration the contents of the bail application and the
nature of offences, the applicants are admitted to interim bail in anticipation of
their arrest subject to the conditions that they will execute the Bail Bond to the
tune of Rs.30,000/- each to the satisfaction of learned District & Sessions Judge,
Anantnag. The applicants shall not tamper with the prosecution evidence and they
shall make themselves available, during the course of the investigation of the
case, if and when required.
This order shall remain in force up to 10th of October, 2017, whereafter
the learned District & Sessions Judge, Anantnag, shall consider the application of
the petitioners for favour of further orders.
This application along with all the allied documents shall be sent to the
Court of the learned District & Sessions Judge, Anantnag.
Learned counsel for the petitioner to present himself before the said Court
on the appointed date.
Disposed of accordingly.
ANOTHER SIMILAR ORDER ON BAIL
Taking into consideration the contents of the application and
the allied material, it is directed that the applicants shall, on their
arrest, be released on bail, in case they execute a Personal Bond to
the tune of Rs.30,000/- each to the satisfaction of the S.H.O
concerned. The applicants shall not tamper with the prosecution
evidence and they shall make themselves available, during the course
of the investigation of the case, if and when required.
This order shall remain in force up to 05 th day of October,
2017, whereafter the learned District & Sessions Judge, Anantnag,
shall consider the application of the petitioners for favour of further
orders.
This application along with all the allied documents shall be
sent to the Court of the learned District & Sessions Judge, Anantnag,
who shall consider the same on its merits.
Learned counsel for the petitioners to present himself before
the said Court on the appointed date.
Disposed of accordingly.
TARIQ Mota
SRINAGAR.
21-09-2017 (M.K.HANJURA)
JUDGE

ANOTHER SIMILAR ORDER ON BAIL
Taking into consideration the contents of the application and
the nature of offences levelled against the applicant, he is admitted to
interim bail in anticipation of his arrest for offences u/s 307, 452,
341, 323 RPC in F.I.R No. 12/2016 dated 23-03-2016 of Police
Station Qalamabad, subject to the conditions that he executes a
Personal Bond to the tune of Rs.50,000/- to the satisfaction of the
S.H.O Police Station, Qalamabad.
This order shall remain in force up to 06th of November, 2017,
whereafter the learned Additional District & Sessions Judge,
Handwara, shall consider the application of the petitioner for favour
of further orders.
This application along with all the allied documents shall
stand transferred to the Court of the Additional learned District &
Sessions Judge, Handwara, who shall decide the same on its merits.
The petitioner shall present himself before the said Court on the
appointed date.
Disposed of accordingly.
TARIQ Mota
SRINAGAR.
Already in custody under FIRs, no PSA can be passed.

1/ One Shri Ali Mohammad Dar, appears to have been detained
by dint of order bearing No. 62/DMB/PSA/2016-17 dated
23-03-2017, passed by the respondent No.2 - District Magistrate,
Bandipora, in exercise of powers vested in him under clause (a) of
section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for
short Act of 1978).
2/ It is pleaded in the petition that the detenue was earlier also
detained under the provisions of the Public Safety Act and kept in
preventive custody, but the said order of detention was revoked by the
Government. However, instead of releasing him, he was booked in
terms of the subsequent order of detention, impugned herein and
lodged at Central Jail Kotebalwal. Learned counsel for the petitioner
has submitted that the detenue continues to be in jail at the moment.
03/ The respondents have pleaded in their Counter affidavit that the
grounds of detention were read over, explained and served to the
detenue and he was told that he has a right to make a representation to
the Government against the order of his detention, which, it appears,
has not been filed by him. The arguments have also been advanced on
similar lines.
04/ The order of detention bearing No. 62/DMB/PSA/2016-17
dated 23-03-2017 has been challenged, inter alia, on the grounds that
the respondent No.2, while informing the detenue of his detention
under the provisions of the Act of 1978, also informed him that he can
make a representation to the Government against the said detention
order, if he so desires. The respondent No.2 has not, however,
informed the detenue that he can make a representation to the
Detaining Authority and this infraction renders the order of detention
liable to be set aside. The other ground urged by the learned counsel
for the petitioner is that the detenue could not have been detained
under the PSA when he was already involved in substantive offences
and was arrested on 20-02-2017 in the case bearing F.I.R No.
49/2016 of Police Station, Hajin, and was on remand, as gets revealed
from the grounds of detention.
05/ Heard and considered.
06/ Preventive detention, as has been held in the cases of
A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha
vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature,
repugnant to democratic ideas and an anathema to the rule of law. The
Supreme Court in Rekha's case (supra) while emphasizing that article
22 (3) (b) Constitution of India is to be read an exception to article
21 of the Constitution of India and not allowed to nullify the right to
personal liberty guaranteed under article 21. The Supreme Court
further observed that since article 22(3)(b) of the Constitution of
India permits preventive detention, we cannot hold it illegal but we
must confine the power of preventive detention within very narrow
limits, otherwise we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India which was won
after long, arduous, historic struggles. It has, therefore, to be
understood that if the ordinary law of the land (India Penal Code and
other penal statutes) can deal with a situation, recourse to a preventive
detention law will be illegal. The Supreme Court added that it must
be remembered that if, in the case of preventive detention, no offence
is proved and there is no conviction, which can only be sanctioned by
legal evidence, preventive detention is often described as "jurisdiction
of suspicion." To prevent misuse of this potentially dangerous power
the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however,
technical, is, in our opinion, mandatory and vital. The Supreme Court,
after putting reliance on the law laid down in Kamleshwar Ishwar
Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49)
observed that the history of liberty is the history of procedural
safeguards. These procedural safeguards are required to be zealously
watched and enforced by the Court and their rigor cannot be allowed
to be diluted on the basis of the nature of alleged activities of the
detenue. The Supreme Court quoted with approval the observation
made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC,
emphasizing the need to ensure that the constitutional and statutory
safeguards available to a detenue are followed in letter and spirit. It
observed, 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.

07/ The procedural requirements are the only safeguards available
to a detenue since the Court is not expected to go behind the
subjective satisfaction of Detaining Authority. As laid down by the
Apex Court in Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and
anr. (1987) 2 SCC 22, 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.
08/ looking at the instant case from the above perspective, case
FIR No. 49/2016 of Police Station, Hajin, for an offence u/s 13
ULA(P) Act was registered against the detenue in Police Station,
Hajin, which, it is said, was under investigation at the time of the
passing of the order of detention and the detenue was in custody in
the said F.I.R and was on remand as detailed in the grounds of
detention. This F.I.R forms the baseline of the order of the detention
of the detenue. The question for consideration, therefore, is can an
order of detention be passed on the face of such an eventuality? The
answer to this question can be a big "No" taking into consideration
the law laid down by the Apex Court of the Country in para 24 sub
para (6) of the judgment delivered in the case of Sama Aruna Vs.
State of Telangana and another, reported in AIR 2017 SC 2662, which
reads as under:-

09/ The same view has been repeated and reiterated by the
Hon'ble Supreme Court paragraph 13 of the judgment pronounced in
the case of V.Shanta Vs. State of Telangana and others, reported in
AIR 2017 SC 2625, that reads as under:
"13. The order of preventive detention passed against the detenue
states that his illegal activities were causing danger to poor and
small farmers and their safety and financial well being. Recourse
to normal legal procedure would be time consuming and would
not be an effective deterrent to prevent the detenu from indulging
in further prejudicial activities in the business of spurious seeds,
affecting maintenance of public order, and that there was no
other option except to invoke the provisions of the Preventive
Detention Act as an extreme measure to insulate the society from
his evil deeds. The rhetorical incantation of the words "goonda"
or "prejudicial to maintenance of public order" cannot be
sufficient justification to invoke the draconian powers of
preventive detention. To classify the detenue as a "goonda"
affecting public order, because of inadequate yield from the chilli
seed sold by him and prevent him from moving for bail even is a
gross abuse of the statutory power of Preventive Detention. The
grounds of detention are ex facie extraneous to the Act."

10/ Testing the case on hand on the touchstone of the law
laid down above, the detenue could not have been detained after
taking recourse to the provision of PSA, when he was in custody.
Had he applied for bail, the proper course would have been to
challenge the order of bail if granted to him. The detenue could not
have been detained preventatively when he was already involved in
the commission of substantive offences. This single infraction
renders the order of detention liable to be set aside.
11/ The other aspect of the case, that cannot be lost sight of, is that
the detenue has not been informed that he has a right to make a
representation to the detaining authority also. Negation of this
inalienable right renders the order of detention liable to be quashed. A
cue can be had , in this behalf, from the law laid down in the case of
Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017),
the relevant excerpts of which are reproduced below :
"6. The submission of the learned counsel for the appellant is
that prior to Government's approval of the Detention order, which
is to be done within 12 days of the detention order, in terms of
Section 8 (4) of the J&K Public Safety Act, 1978, the detaining
authority also has the power to revoke the detention order. This
power is clearly relatable to Section 21 of the General Clauses
Act, Samvat, 1977, which has been saved by virtue of Section 19
of the J&K Public Safety Act, 1978. It was further submitted that
till the Government's approval of the Detention order is granted,
since the Detaining Authority had the power to revoke the
detention order, a representation could have been made to the
Detaining Authority for revoking the detention order. Therefore,
according to the learned counsel for the appellant, it was
incumbent upon the Detaining Authority to have informed the
detenu that he could also make a representation to him (the
Detaining Authority), if he so desired. It was further contended
that since the Detaining Authority did not communicate to the
detenu that such a representation could be made to the Detaining
Authority, this in itself amounted to infraction of the provisions of
Section 13 of the Jammu and Kashmir Public Safety Act, 1978
read with Article 22(5) of the Constitution of India. In support of his
submission, he placed reliance on a Supreme Court decision in
the case of State of Maharashtra and ors v. Santosh Shankar
Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of
the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981,
were considered by the Supreme Court. In that case also the
Supreme Court came to the conclusion that non-communication
of the fact that the detenu could make a representation to the
Detaining Authority would constitute an infraction of a valid
constitutional right guaranteed to the detenu under Article 22(5) of
the Constitution of India and such failure would make the order of
detention invalid.
13. On the strength of this decision of the Supreme Court, the
learned counsel for the appellant submitted that the detention
order in the present case also became invalid because of the
non-communication of the fact that the detenu could make a
representation to the Detaining Authority till the Government
had approved the detention order.
14. The learned counsel for the respondents however submitted
that all the technical requirements had been complied with
and, particularly of Section 13, which required that the earliest
opportunity of making a representation be provided to the
detenu. He submitted that the communication dated
22.12.2016, issued by the District Magistrate, Baramulla,
made it abundantly clear to the detenu that he could make a
representation to the Home Department of the Government, if
he so desired. Consequently, it was submitted that what was
required to be done under Section 13 of the J&K Public Safety
Act, 1978 and Constitution of India under Article 22(5) thereof,
had been done and, therefore, the detention order cannot be
regarded as having become invalid. He further submitted that
in any event, the detenu had not even availed the right of
making the representation to the Government even after the
approval of the Government was granted on 28.12.2016.
Therefore, according to the learned counsel for the
respondents, the detention order cannot be held to be invalid
on the ground urged by the learned counsel for the appellant.
15. Section 8 of the Jammu and Kashmir Public
Safety Act, 1978, and, in particular, sub Section
(2) thereof, provides that a detention order can
be passed by inter alia a District Magistrate.
Sub-Section (4) of Section 8 of the said Act
stipulates that when any order is made under the
said Section by a person 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 of the
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. This clearly
implies that though the District Magistrate can
make a detention order, such detention order
requires to be approved by the Government not
later than 12 days from the date of the order.
Section 19 of the Jammu and Kashmir Public
Safety Act, 1978, reads as under:- "19.
Revocation of detention orders.-

(1) Without prejudice to the provisions of
section 21 of the General Clauses Act,
Smvat 1977, a detention order may, at any
time, be revoked or modified by the
Government, notwithstanding that the order
has been made by any officer mentioned in
sub- section (2) of section 8.

(2) There shall be no bar to making of a fresh
order of detention against a person on the
same facts as an arlier order of detention
made against such person in any case where
-

(i) the earlier order of detention or its continuance is not legal on account of any technical defect or

(ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded."

" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.

Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

13. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.

12. On examining the Supreme Court decision in the case of Santosh Shankar Acharya (supra), we find that that the relevant provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders and Dangerous Persons Act, 1981 are in pari materia to the provisions of the Jammu and Kashmir Public Safety Act, 1978. For example, Section 3 of the Maharashtra Act is almost identical to Section 8 of the J&K Act, Section 8 of the Maharashtra Act corresponds to Section 13 of the J&K Act and, similarly Sections 14 and 21 of the Maharashtra Acts correspond to Sections 19 and 21 of the J&K Act.

25. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.

26. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, 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 the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-

"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-

communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."

27. 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 Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.

28. 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.

29. 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.

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

12/ The judgement cited above has a pellucid simplicity and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention.

13/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 62/DMB/ PSA/2016-17 dated 23rd of March, 2017, passed by the respondent No.2 - District Magistrate, Bandipora, is quashed with a further direction to the respondents to release the person of Ali Mohammad Dar S/O Mohammad Maqbool R/O Danger Mohalla, Hajin, Tehsil Hajin District Bandipora, forthwith from the preventive custody, unless required in any other case. 14/ The petition is, accordingly, disposed of along with connected IAs. The record is returned to the learned counsel for the respondents in the open Court.

Effective representation citation The other aspect of the case, that cannot be lost sight of, is that the detenue has not been informed that he has a right to make a representation to the detaining authority also. Negation of this inalienable right renders the order of detention liable to be quashed. A cue can be had , in this behalf, from the law laid down in the case of Tariq Ahmad Dar versus State of J&K and others (LPA No. 43/2017), the relevant excerpts of which are reproduced below :

"6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.

16. On the strength of this decision of the Supreme Court, the learned counsel for the appellant submitted that the detention order in the present case also became invalid because of the non-communication of the fact that the detenu could make a representation to the Detaining Authority till the Government had approved the detention order.

17. The learned counsel for the respondents however submitted that all the technical requirements had been complied with and, particularly of Section 13, which required that the earliest opportunity of making a representation be provided to the detenu. He submitted that the communication dated 22.12.2016, issued by the District Magistrate, Baramulla, made it abundantly clear to the detenu that he could make a representation to the Home Department of the Government, if he so desired. Consequently, it was submitted that what was required to be done under Section 13 of the J&K Public Safety Act, 1978 and Constitution of India under Article 22(5) thereof, had been done and, therefore, the detention order cannot be regarded as having become invalid. He further submitted that in any event, the detenu had not even availed the right of making the representation to the Government even after the approval of the Government was granted on 28.12.2016. Therefore, according to the learned counsel for the respondents, the detention order cannot be held to be invalid on the ground urged by the learned counsel for the appellant.

18. Section 8 of the Jammu and Kashmir Public Safety Act, 1978, and, in particular, sub Section (2) thereof, provides that a detention order can be passed by inter alia a District Magistrate.

Sub-Section (4) of Section 8 of the said Act stipulates that when any order is made under the said Section by a person 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 of the 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. This clearly implies that though the District Magistrate can make a detention order, such detention order requires to be approved by the Government not later than 12 days from the date of the order.

Section 19 of the Jammu and Kashmir Public Safety Act, 1978, reads as under:- "19.

Revocation of detention orders.-

(1) Without prejudice to the provisions of section 21 of the General Clauses Act, Smvat 1977, a detention order may, at any time, be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub- section (2) of section 8.

(2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an arlier order of detention made against such person in any case where

(i) the earlier order of detention or its continuance is not legal on account of any technical defect or

" 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws.

Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."

14. It is further evident that till the Government grants approval to the detention order in terms of Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, the Detaining Authority has the power to add to, amend, vary or rescind inter alia any order issued by him which includes a detention order.

31. The Supreme Court in the said decision was considering the case which had arisen from a Full Bench decision of the Bombay High Court. The question before the Full Bench of Bombay High Court had been one which had been referred for its decision and that was -- whether in case of an order of detention by an officer under Section 3(2) of the said Maharashtra Act, non-communication to the detenu that he has a right of making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? This question was answered in the affirmative, meaning that unless and until the detenu was communicated that he has a right to make a representation to the Detaining Authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and the detention order would be vitiated.

32. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, 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 the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:-

"This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-

communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."

33. 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 Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.

34. 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.

35. 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.

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

7/ The judgement cited above has a pellucid simplicity and applying its ratio to the facts of the instant case, what can be said is that it is an open and shut case of the deprivation of an inalienable right of the detenue, inasmuch as, he has not been informed that he can make a representation to the Detaining Authority till such time that the detention order is not approved by the Government. This permitted no option as it is a right guaranteed under article 22(5) of the Constitution of India and section 13 of the Act of 1978. It is incapable of being taken away and the failure, in providing this information to the detenue, has the effect of invalidating the order of detention.

8/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. ________ dated _____ 2017, passed by the respondent No.2 - District Magistrate, _____, is quashed with a further direction to the respondents to release the person of ______ forthwith from the preventive custody.

9/ The petition is, accordingly, disposed of along with connected IAs. Registry to return the record to the learned counsel for the respondents.

A MINOR CAN'T BE SLAPPED PSA 1/ The crux of the petitions of the petitioner is that his minor son

- Danish Hassan Dar, was arrested under FIR No. 481/2016 by Police Station, Sopore, and after keeping him in custody for quite some time, he was detained under the provisions of Public Safety Act (PSA), 1978 vide impugned order No. 276/DMB/PSA/2017 dated 17th March, 2017 and lodged at Central Jail, Kotbalwal, Jammu. It is further submitted by the petitioner that the detenue was informed about his detention by respondent No.2 in terms of letter dated 17th March, 2017, with which he was also provided the grounds of detention. It is stated that the aforementioned order of detention was not approved by the Government, resultantly, another order of detention bearing No. 05/DMB/PSA/2017 dated 10th April, 2017 came to be passed against the detenue, which is also under challenge by medium of HCP 138/2017.

2/ The petitioner has assailed the aforesaid orders of detention chiefly on the ground that the detenue is a minor and, as such, the respondent No.2 had no jurisdiction to detain him under the provisions of PSA of 1978.

3/    Heard and considered.
4/    Learned counsel for the petitioner has vehemently argued that

the detenue, who is a minor, could not have been detained under the provisions of PSA of 1978 and, therefore, the said order cannot withstand the scrutiny of law. To the contrary, the learned counsel representing the other side, has argued that the detention orders of the detenue can be sustained in the eye of law.

5/ Learned counsel for the respondents has resisted and controverted the submissions of the petitioner primarily on the ground that the orders of detention give a complete account of the activities of the detenue, which, on their face, are highly prejudicial to the maintenance of public order and, as such, there was every reason for the Detaining Authority to order detention of the detenue under the PSA of 1978.

6/ Testing the orders of detention on the touchstone of the provisions governing the subject, the argument of learned counsel for the respondents appears to be a spurious one. It is so because Section 8 VI of 1978 has been amended by Act No. VII of 2012 dated 17th April, 2012. The said amendment is reproduced below verbatim et literatim:

"2. Amendment of section 8, Act VI of 1978 - In sub section (3) of section 8 of Jammu & Kashmir Public Safety Act, 1978 (hereinafter referred to as "the Principal Act), after clause (c), the following clause shall be inserted namely :

"(f) "person" shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) thereof."

7/ The aforesaid amendment, incorporated in section 8, assumes significance in the context of the decision of the instant petitions. What is brought to the fruition from this amendment is that a person, who has not attained the age of 18 years cannot be detained under the clauses (a & a-1) of Section 8 of the PSA of 1978. 8/ The operative part of the orders of detention brings it to the fore that the detenue has been detained by the learned District Magistrate, Baramulla, in exercise of powers conferred upon him by clause (a) of section 8 of J&K PSA, 1978. Under such circumstances, the question for consideration here is whether the detenue was a minor at the time of his detention and if so, whether the orders of his detention could have been passed.

9/ To substantiate his contention, the petitioner has placed, on record 03 extracts attached as Annexures D,E & F to the writ petition, which are in the shape of Birth Certificate of the detenue issued by Sopore Municipal Council, the Grade Card issued by J&K Board of School Education and the Certificate issued by Govt. Higher Secondary School, Sopore. All these extracts/ certificates depict the date of birth of the detenue as 07th June, 2000. These extracts are public documents and have the presumption of correctness attached to them. From a bare glimpse of these extracts, what gets revealed is that the detenue was less than 18 years of age on the date of the order of his detention, i.e. 17th March, 2017. Therefore, the answer to the question raised above is that the detenue was a minor on the date of his detention and on the analogy of the amendment cited above, his detention could not have been ordered. This, by itself, demolishes the entire edifice on which the orders of detention have been based. 10/ Taking a cumulative view of all that has been said and done above, these writ petitions are allowed. Orders of detention bearing NOs. 276/DMB/PSA/2017 dated 17th March, 2017 & 05/DMB/PSA/2017 dated 10th April, 2017, passed by respondent No.2 - District Magistrate Baramulla, are quashed with a further direction to the respondents to forthwith release the person of Danish Hassan Dar S/o Ghulam Hassan Dar R/o Batapora, Sopore, Baramulla, from the preventive custody.

11/ Both the writ petitions are, accordingly, disposed of along with connected IAs.

A person even on bail cannot be slapped PSA HIGH COURT OF JAMMU AND KASHMIR-

                                  SRINAGAR

Case No: HCP //2017                                      Dated :   of Oct., 2017
SHA               VERSUS                    STATE AND ORS.
                         ORDER SHEET
CORAM:
 HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
i.       Whether to be approved for
         reporting in NET :                    Yes/No
ii.      Whether to be approved for
         reporting in Digest/Journal :         Yes/No

FOR THE PETITIONER/s : MR. N
FOR THE RESPONDENT/s: .MR. R
(M.K.HANJURA-J)

1/       The detenue - Shakoor Ahmad Parray, was detained vide
 order     No. /DMK/PSA/2016 dated -2016, passed by                         District
Magistrate,         , in exercise of powers vested in him under clause (a)

of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). The said order was challenged by the petitioner by the medium of HC(w) No. /2016, which was disposed of by this Court vide order dated -2016 with the direction to the respondents to release the detenue forthwith. It is pleaded that instead of releasing the detenue from the preventive custody, another order of detention bearing No. DMA/PSA/DET/2017 dated -2017, impugned herein, was slapped on the detenue and he was kept in District Jail Kathua, where he is lodged at the moment.

02/ The respondents have pleaded in their Counter affidavit that the grounds of detention were read over, explained and served to the detenue and he was told that he has a right to make a representation to the Government against the order of detention. The arguments have also been advanced on similar lines.

03/ The impugned order of detention has been challenged on the grounds, inter alia, that the detenue could not have been detained under the PSA when he was already in custody in substantive offences in case FIR No. 08/2016 u/s 409, 380 RPC & 7/25 A. Act, registered at Police Station , in which he was subsequently admitted to bail.

04/      Heard and considered.
05/      Preventive detention, as has been       held in the cases of
A.K.Gopalan         v. State of Madras (1950) SCR 88       and   Rekha

vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, 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. 06/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, 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.

07/ looking at the instant case from the above perspective, case FIR No. 08/2016 u/s 409, 380 RPC & 7/25 A. Act, was registered against the detenue at Police Station Bijbehara, and at the time of the passing of the impugned order of detention, the detenue was on bail. This F.I.R forms the baseline of the order of the detention. The question for consideration, therefore, is can an order of detention be passed on the face of such an eventuality? The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:-

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

08/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows:

"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda"

or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."

09/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences and in which he had been released on bail. The proper course would have been to challenge the order of bail granted to him. The detenue could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside.

10/ Looking at the instant case from yet another perspective, the order of detention has been passed on 05-08-2017. The detenue along with the relevant documents, i.e. copy of the order of detention, the letter addressed to him and the copy of the grounds of detention (03 leaves) have been handed over to the jail Authorities of District Jail, Kathua, on 11-08-2017 by S.I. Mohammad Ashraf No. 6631/NGO (EXK-003041) DPL, Anantnag, for further lodgment of the detenue and for handing over of the documents aforesaid to him under proper receipt. In the execution report dated 11-08-2017, by which the warrant of detention has been executed by S.I. Shri Mohammad Ashraf, No. 6631/NGO (EXK-003041) DPL, Anantnag at District Jail Kathua, it is stated that the contents of the warrant of detention and the grounds of detention have been read over to the detenue in English and explained to him in urdu/kashmiri languages, which he understands fully and in lieu thereof, his signature has been attained on the report. What gets revealed from perusal of the record relating to the detention of the detenue is that the copy of F.I.R, on which explicit reliance has been put by the Detaining Authority in carving out a case for the detention of the detenue, do not appear to have been provided to him, which is an infraction of law. This has not only precluded the detenue from making an effective representation but has also violated the very soul and spirit of the provisions contained in the Public Safety Act. This contravention renders the detention order invalid under law. 11/ In the backdrop of what has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. DMA/PSA/DET/2017 dated -2017, passed by the respondent No.2 - District Magistrate, Anantnag, is quashed with a further direction to the respondents to release the person of Sha S/O R/O Kashmir, forthwith from the preventive custody, unless required in any other case.

12/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota SRINAGAR.

THE PERSON WHO HANDOVER THE DETENUE TO THE JAIL AUTHORITIES ALONG WITH RELEVANT DOCUMENTS SHOULD FILE AFFIDAVIT.

13/ The learned counsel for the petitioner has argued that the person, who has handed over the detenue to the jail authorities of the Central Jail, Kotebalwal, along with relevant documents, should have filed an affidavit to that extent. From a bare glimpse of the execution report, what gets revealed is that the detention warrant has been executed on 23-07-2017 at Central Jail, Kot Bhalwal, Jammu. It also states that the contents of detention warrant and grounds of detention were read over to the detenue in English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully and in token thereof, his signature was also obtained on the execution report itself. To eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under :

"1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act."

14/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 76/DMB/PSA/2017 dated 22-07-2017 passed by the respondent No.2 - District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Mohammad Afzal Bhat S/O Mohammad Ahsan Bhat R/O Behrampora, Rafiabad, District Baramulla, Kashmir, forthwith from the preventive custody, unless required in any other case. 15/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota TO BE HEARD BY Central Administrative Tribunal HIGH COURT OF JAMMU AND KASHMIR-

                                     SRINAGAR

  Case No: SWP 247/2017                                    Dated : 07th of June 2018
  GHULAM RASOO DAR                          VERSUS              STATE AND ORS.
                            ORDER SHEET
  CORAM:
   HON'BLE         MR. JUSTICE M.K.HANJURA- JUDGE
  i.        Whether to be approved for
            reporting in NET :                  Yes/No
  ii.       Whether to be approved for
            reporting in Digest/Journal :       Yes/No

  FOR THE PETITIONER/s : MS. ZEENAT NAZIR

FOR THE RESPONDENT/s: . MS. RUKAYA VICE MR. T.M.SHAMSI, ASGI (ORAL) Learned counsel for the petitioner stated at the bar that in view of the provisions contained in section 29, read with section 28 of the Central Administrative Tribunal (CAT) Act, this petition has to be heard and determined by the Central Administrative Tribunal.

Learned counsel, representing the respondents, has accepted this proposition.

In view of the above, the matter shall stand transferred to the Central Administrative Tribunal for further consideration.

Writ petition along with connected IAs, is disposed of, accordingly.

TARIQ Mota SRINAGAR.

   07-06-2018                                            (M.K.HANJURA)
                                                            JUDGE

PETITION SOUGHT TO BE FILED IN REPRESENTATIVE CAPACITY HIGH COURT OF JAMMU AND KASHMIR SRINAGAR CASE NO. : MP 01/2017 in SWP /2010 M VERSUS UNION OF INDIA & ORS.

MR. FOR THE PETITIONER.

MR. FOR THE RESPONDENT/s.

The applicants have craved the indulgence of this Court in permitting them to file the instant petition in representative capacity on the grounds taken in the MP read with the averments set up in the petition.

Notice in terms of Order 1 Rule 8 CPC, shall be issued in two dailies, having vide circulation in the province of Kashmir. In the meanwhile permission, as sought, is granted and the MP is accordingly disposed of.

SWP /2017 :

Notice returnable within four weeks.

Notice in the MP also returnable within the same period. List on _________.

In the meantime subject to objections and till date of listing before the bench, _________ Court cannot interfere in the orders of the executive unless .......... Similar case like Dangiwacha villagers.........

HIGH COURT OF JAMMU AND KASHMIR-

                                       SRINAGAR

     Case No: OWP 1828/2017                                  Dated : 10th Nov, 2017
     RESIDENTS OF VILLAGE CHOWDAR GUND              VERSUS       STATE AND ORS
                              ORDER SHEET
     CORAM:
      HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
     i.       Whether to be approved for
              reporting in NET :              Yes/No
     ii.      Whether to be approved for
              reporting in Digest/Journal :   Yes/No

     FOR THE PETITIONER/s : MR. JAVED SAMAD
     FOR THE CAVEATOR     : . NONE
     (ORAL)

01/ The facts of the instant case, in brief, are that a Government School running in a building, situate at village Chowdar Gund, Tehsil Chadoora, abutting nalah Afzire, was damaged in the floods that hit the valley of Kashmir in the month of September, 2014. The school did not function in the said building since then. The respondents, in the recent past, started the construction of a new school building at the edge of nalah Afzire, which is a flood prone area. The respondents chose not to repair the old building that was damaged by the floods. The aim of the respondents in constructing a new school building is to accommodate some contractors and, if it, is allowed to be constructed, it will cause a heavy burden on the State exchequer. The petitioners filed repeated representations before the respondents to redress this wrong but to their dismay, these were not considered and no action was taken in them.

02/ Heard.

03/ This Court, in case titled Inhabitants of Township Dangiwacha versus State and others (OWP 563/2011), decided on 12th of October, 2017, inter alia directed as under :

12/ The Courts cannot tread into the executive territory nor can the Courts sit in the judgement of the executive, particularly, when valid reasons are given for taking a particular decision as has been done here in this case. A three Judge Bench of Hon'ble the Supreme Court, while considering an almost similar issue, as raised herein in the case titled Union of India versus Nagesh - 2002(7) SCC 603, held as under :

"After we heard the matter, we are of the view that such a direction could not have bee issued by the High Court to the appellants herein in a petition under Article 226 of the Constitution. What would be the scheduled timings for a train for its departure and arrival is an administrative decision keeping in view the larger public interest or public convenience and not the convenience of the public of a particular town. Such a decision is within the exclusive administrative domain of the Railways and is not liable to be interfered with in a petition filed under Article 226 of the Constitution. (Emphasis supplied) In spite of the said decision rendered in regard to the similar earlier orders of the said High Court, the Division Bench of the High Court has chosen to indulge in a similar exercise in this case."

13/ From a bare perusal of the law laid down above, what comes to the fore is that administrative decision/s, regarding issues of the larger public interest or public convenience and not the convenience of the public of a particular town or area, are within the exclusive domain of the political executive and those decisions are not liable to be interfered with. Again in the case of Directorate of Film Festivals versus Gaurav Ashwin Jain [2007 (4) SCC 737], the Court held as under:

"The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."

14/ The decision cited above repeats and reiterates that the Courts cannot usurp the powers of the executive by entering into the area which is within their exclusive jurisdiction.

15/ The House of Lords, setting the limits of judicial review in Chief Constable of the North Wales Police versus Evans 1982 (2) All ER 141, concludes as under:

"The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. .. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. This court has repeatedly warned that courts should resist the temptation to usurp the power of the Executive by entering into arenas which are exclusively within the domain of the executive."

04/ Applying the ratio of the law laid down supra to the facts of the instant case, it is manifest that the power and the authority of the Courts to examine the correctness, suitability and appropriateness of a policy of the Government is limited in its scope and extent. The Courts can sit in the judgement of the executive. The Court can trample on it only in case it violates the fundamental rights of the citizens or is in conflict with the provisions of the Constitution or is opposed to any statutory provision or is manifestly arbitrary. The decision of the political executive in constructing a school at a particular place is not amenable to judicial review as, on the face of it, it is neither violative of the fundamental rights of the citizens nor is it opposite to the provisions of the Constitution or any statutory provisions nor is it manifestly arbitrary and particularly when both the damaged building and the building under construction are said to be housed on the bank of river Afzire and to cap it all, there is no document on record to substantiate and support the plea of the petitioners that the school building is being constructed on the bank of the river despite the availability of an alternate space. This Court, in exercise of powers under the writ jurisdiction, cannot entertain a plea raising a disputed question of fact..

05/ Viewed in the context of what has been said and done above, this petition cannot be entertained and it is, accordingly, dismissed in limine along with connected IAs.

TARIQ Mota SRINAGAR.

10-11-2017                                                (M.K.HANJURA)
                                                                        JUDGE

Court order not complied, contempt filed, consideration rejected in statement of facts and, thus, contempt closed.

HIGH COURT OF JAMMU AND KASHMIR-

                                       SRINAGAR

     Case No: CONT. 353/2014 in SWP 2246/2011                       Dated : 22ND Dec., 2017
     ABDUL KHALIQ                             VERSUS            SURESH KUMAR AND ORS.
                              ORDER SHEET
     CORAM:
      HON'BLE        MR. JUSTICE M.K.HANJURA- JUDGE
     i.       Whether to be approved for
              reporting in NET :                       Yes/No
     ii.      Whether to be approved for
              reporting in Digest/Journal :            Yes/No

     FOR THE PETITIONER/s : MR. MADAD KHAN
     FOR THE RESPONDENT/s: . MR. MERAJ-UD-DIN, GA
     (ORAL)

01/ By order dated 21-10-2013, of this Court passed in the case of Abdul Khaliq versus State and others (SWP2246/2011), the Court directed as under :

"........... The writ petition along with connected IAs is disposed of and impugned order is set aside. The respondents are directed to reconsider claim of the petitioner in the light of observations made in this order for being appointed on compassionate grounds. Respondents to consider and take decision in the matter preferably within four weeks from the date copy of this order is served on them. It is made clear that before passing any order, the petitioner shall be afforded opportunity of hearing."

02/ The respondents did not reconsider the claim of the petitioner in light of the order aforesaid, as a consequence of which, he was constrained to file the contempt petition, in which the respondents filed the Statement of Facts supported by Government order No. 175/Home of 2016 dated 24-03-2016, the relevant excerpts of which are reproduced hereinbelow verbatim :

"whereas the claim of the petitioner has been examined in compliance with the orders of the Hon'ble High court and it has been found that :

i/ SRO 194 dated 18th May, 1999 regulated the appointment of dependents of the government employee into the service on compassionate grounds up to 23-09- 1991. Rule 3 of these rules, among others, provided that the appointment shall be made only in such cases where the death of the earning member causes extreme hardship to the immediate family. Further, proviso below Rule 5 of these rules provides that the case of compassionate appointment shall be finalized within a period of three months from the death of the Government employee with the approval of the Minister-in-Charge. As a corollary to this, an applicant is required to apply for appointment immediately to ensure finalization of his case within the stipulated period of three months.

ii/ The death of late Sgct. Khaleel u Rehman No. 581/B has occurred on 14-02-1991. The petitioner did not apply for compassionate appointment at the relevant point of time because of his ineligibility. He applied for compassionate appointment after around two decades from the death of his father. He has further requested for his appointment under SRO 43. The petitioner is not eligible for appointment either in terms of SRO 194 dated 18th May 1989 or SRO 43 of 1994.

Now therefore, the claim of Shri Abdul Khaliq S/O Late Khaleel ul Rehman Mughal R/O Darwan Tehsil Uri District Baramulla having been considered in due deference to the order dated 21-10-2013 passed by the Hon'ble High Court in SWP 2246/2011 titled Abdul Khaliq Vs Mr. Suresh Kumar, has been found to be devoid of any merit and is accordingly rejected for reasons mentioned hereinabove."

03/ Since the respondents have reconsidered the matter in light of the aforesaid directions of this Court and have found the same to be devoid of any merit, therefore, the contempt is closed. 04/ The petitioner shall have the liberty to workout the remedy whatever may be available to him.

TARIQ Mota SRINAGAR.

22-12-2017                                          (M.K.HANJURA)
                                                                JUDGE

Effective representation becz of non furnishing of relevant documents HIGH COURT OF JAMMU AND KASHMIR-

                                     SRINAGAR

     Case No: HC(p) 213/2017                                       Dated : 27th of Dec., 2017
      SHABIR AHMAD DAR                             VERSUS                    STATE AND ORS.
                            ORDER SHEET
     CORAM:
      HON'BLE      MR. JUSTICE M.K.HANJURA- JUDGE
     i.     Whether to be approved for
            reporting in NET :                         Yes/No
     ii.    Whether to be approved for
            reporting in Digest/Journal :               Yes/No

     FOR THE PETITIONER/s :                 MR. WAJID VICE MR. MIR SHAFQAT HUSSAIN
     FOR THE RESPONDENT/s:              . MR. IRFAN ANDLEEB, Dy.AG VICE MR. Q.R.SHAMAS, Dy.AG
     (M.K.HANJURA-J)

     1/    The detenue - Shabir Ahmad Dar, was detained vide order
     No. 11/DMB/PSA of 2017 dated 19-06-2017 passed by                               District

Magistrate, Bandipora, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978) and he was kept in Central Jail Kotbhalwal, Jammu. The detenue continues to be in Central Jail Kotbhalwal, Jammu, at the moment. The order of detention was executed on 24th of June, 2017. The grounds of detention, along with the allied documents, are said to have been served on the detenue and the contents thereof, as contended, have been read over and explained to him in the language which he understood fully well. 02/ The order of detention has been challenged on the grounds, inter alia, that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs. It is also argued that the detenue has been deprived of the right to file an effective representation against the order of his detention, as the relevant material, relied upon by the Detaining Authority while passing the impugned order of detention, in the form of the copy of dossier, the copy of FIRs, the statement u/s 161 Cr.PC and the seizure memos, have not been furnished to him. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 24-06-2017 by one ASI Abdul Rashid No.141/Awt, EXK No. 831992 of police station, Hajin, Bandipora, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said ASI ought to have filed an affidavit to substantiate so, which has not been done in the case on hand. The petition, on this ground alone, deserves to be allowed and, as a consequence thereof, the order of detention is liable to be quashed. 03/ Learned counsel for the respondents has argued that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. Central Jail, Kotbhalwal. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents.

04/ Heard and considered. The detention record has also been perused.

05/ As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences in case bearing F.I.R No. 23/2017 u/s 8/20 NDPS Act, registered in Police Station Sumbal, on 18-03-2017. The detenue was arrested on 01-06-2017 and a case bearing F.I.R No. 34/2017 u/s 7/25 I.A.Act, 18 ULA Act, was registered against him by police station Hajin. The detenue was in custody when the impugned order dated 19-06-2017 was passed.

06/ Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue. The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, 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. 07/ The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, 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.

08/ Looking at the instant case from the above perspective, the detenue was already booked in substantive offences in case bearing F.I.R No. 23/2017 u/s 8/20 NDPS Act, registered in Police Station Sumbal, on 18-03-2017. He was arrested on 01-06-2017 and a case bearing F.I.R No. 34/2017 u/s 7/25 I.A.Act, 18 ULA Act, was registered against him by police station Hajin and at the time of the passing of the impugned order of detention, he was in the custody of the respondents. These F.I.Rs form the baseline of the order of the detention of the detenue. The question, which arises for consideration, therefore is, can an order of detention be passed on the face of what has been detailed above. The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country at para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:-

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

09/ The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, which reads as follows:

"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenue from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda"

10/ Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences in which he was arrested and had not applied for bail. The proper course would have been to challenge the order of bail, if granted to him. The detenue could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside. Moreso, the order of detention appears to have been passed on surmises, conjectures and repetition of the earlier grounds, questioned in the earlier writ petition, which is bad in law.

11/ The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the Central Jail, Kotbhalwal, along with the relevant documents, should have filed an affidavit in the mater, which has not been done. From a bare glimpse of the execution report, what gets revealed is that the detention warrant has been executed on 24-06-2017 at Central Jail, Kotbhalwal, Jammu. It also states that the contents of the detention warrant and the grounds of detention were read over to the detenue and explained to him in kashmiri languages, which language he understood fully well and in token thereof, his signature was attained on the execution report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, ASI Abdul Rashid, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under :

"1/ Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act."

12/ Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 11/DMB/PSA/2017 dated 19-06-2017 passed by the respondent No.2 - District Magistrate, Bandipora, is quashed with a further direction to the respondents to release the person of Shabir Ahmad Dar S/O Abdul Majid Dar R/O Chandergeer, Tehsil Hajin, District Bandipora, Kashmir, forthwith from the preventive custody, unless required in any other case.

13/ The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.

TARIQ Mota SRINAGAR.

27 -12-2017 (M.K.HANJURA) JUDGE DB CONDONATION OF DELAY HIGH COURT OF JAMMU AND KASHMIR-

                                                  SRINAGAR

               Case No: COD 118/2017                                        Dated : 24th July. 2017
               STATE OF J&K                              VERSUS                 MUSADIQ FAYAZ
                                         ORDER SHEET
               CORAM:
               HON'BLE           MR. JUSTICE MOHAMMAD YAQOOB MIR- JUDGE
               HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
               i.        Whether to be approved for
                         reporting in NET :                       Yes/No.
               ii.       Whether to be approved for
                         reporting in Digest/Journal :            Yes/No

               FOR THE APPLICANT/s :   MR. M.A.BEIGH, AAG

FOR THE RESPONDENT/s: . MR. Z.A.QURESHI, Sr. ADV. (PER HANJURA-J) 01/ The State of J&K, through Commissioner Secretary to Government, Education Department, Civil Secretariat, has filed an application seeking the indulgence of this Court in condoning the delay of 325 days in filing the Appeal, inter alia, on the grounds that the appellant No.2 came to know about the judgement dated 07 th of April, 2016 of this Court, passed in Contempt No. 51/2014 only on 17th of September, 2016. Learned counsel for the applicant submits that after receipt of the copy of the order/judgement, immediate steps were taken to take further action in the matter and in the process, appellants were required to collect the records from the subordinate offices. The material was scanned at various levels to derive satisfaction on the count whether, or not, the appeal is to be filed. After going through the entire record of the case, the matter was referred to the General Administration Department, for its views. Thereafter opinion from the Department of Law, Justice & Parliamentary Affairs, was sought. Obviously the examination of the matter and consideration of the question of filing of Appeal at various levels led to consumption of time.

02/ The applicant has proceeded to state further that there was a delay of some months caused due to the administrative exigencies. It has further been stated that the Department of Law, Justice & Parliamentary Affairs, accorded sanction for filing of LPA vide its letter No. LD(Lit)2012/95-GAD dated 10th March, 2017. After the receipt of the sanction from the Department of Law, Justice & Parliamentary Affairs, learned AAG, swung into action and immediately called the record of the case and other documents from the Appellant, i.e. State of J&K. It has further been pleaded that the Appeal has an important bearing as far as the interests of the Appellant are concerned and in case the delay in filing the Appeal is not condoned, it will cause great prejudice to the State. It has further been averred that the settled position of law is that since the decisions at the Government level are taken at a slow pace, therefore, some amount of latitude has to be given to it and the Government cannot be equated and treated on par with the private parties in the matter of condonation of delay. The application is buttressed with an affidavit.

03/ Learned counsel for the respondent has resisted and controverted the application of the Appellant, chiefly on the ground that although the appellant has stated that the judgement was perused at different levels and the same was referred to the Law Department that directed the filing of appeal, yet there is nothing to state as to when the appellant was advised to file the Appeal. The application being cryptic and there being no ground, much less a sufficient one, for the Condonation of Delay, the application is liable to be dismissed.

 04/     Heard and considered.
05/     It cannot be disputed that the Law of Limitation has to be

applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant or the appellant has to satisfy the Court that he/she has carved out a sufficient cause in seeking the indulgence of the Court for not preferring the Appeal or Application within the stipulated time. The State cannot, as a matter of rule, take umbrage under the plea that it has to be treated on a different pedestal in the matter of the extension of time for filing the Appeal/Application. No doubt, some latitude may be warranted to be given to the State promoting social justice but it cannot escape the liability of satisfying the Court that the Appeal was filed with due diligence. The Courts cannot come to the aid and rescue of the State where the application for condonation of delay does not spell out sufficient cause and the approach of the State, in making such application, is casual and cryptic.

06/ In order to find out whether or not the appellant - State has been remiss and callous in seeking the condonation of delay in filing the LPA, it is reiterated here that the appellant has stated in the Application that the copy of the order/judgement was perused at various levels to satisfy itself whether the Appeal has or has not to be filed. It has also been stated that the entire record was sent to the Department of Law, Justice and Parliamentary Affairs, and the said Department accorded sanction to the filing of such Appeal. 07/ Testing the application of the applicant - petitioner on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 6,7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, verbatim et literatim :

"6. Under the concept of welfare State, in order to promote social justice, it is the bounden duty of the State to protect and preserve public interest and public fund. Since public exchequer is incurring heavy expenses on different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is a good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal is bound to be condoned, taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of the those cases where sufficient causes were shown and proved.

7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

8. In another case, the Hon'ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under:

"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:

..........................................

3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

08/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 325 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to formulate an opinion that the Appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows :

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

....................

6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."

09/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

....................

31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

10/ Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the explanation offered for the delay in filing the Appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving a proper account of the dates and details of the grounds agitated in it. Recourse has been had to the leisure and pleasure in moving the application and to cap it all, the State has not knocked the doors of the Court with clean hands. It is so because it has been pleaded in the application for the condonation of delay that the State came to know about the judgement of this Court dated 07th of April, 2016 on the 17th day of September, 2016. This assertion of the State is belied from a bare perusal of the judgement dated 07th of April, 2016 of this Court in which, Ms. Mokshah Kazmi, learned AAG, is found to have appeared before the Court to represent the State. Therefore, fair play has become a casualty at the hands of the State for the simple reason that what has been pleaded, to work as the bedrock of the case, does not hold true.

11/ XXXXXXXX (this para is added to be used in future) It will be apt to mention here that the sequence of the events followed by the dates that prompted the applicant - Company to file the appeal after a long delay had to be accounted for to satisfy the Court that the delay in lodging of appeal was neither willful nor deliberate. This has not been done. The application projects a pretty dismal account. The dates and events portrayed in it reflect that the matter has been dealt with freedom and ease. What gets revealed further from the perusal of the objections of the respondent is that the application is a camouflage devised by the applicant - Company to scuttle the contempt proceedings initiated by the respondent against it and that the applicant - Company, after rising from a deep slumber, took resort to these proceedings simply to hoodwink the process of the law initiated against it to seek the implementation of the order of the Court in a contempt petition. XXXXXXXXX (added for future orders) 12/ Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 325 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.

                        (M.K. HANJURA)     (MOHAMMAD YAQOOB MIR)
                                   JUDGE                          JUDGE
 Tariq MOTA
 SRINAGAR.
 24-07-2017
           Single Bench condonation of delay (COD)


 HIGH COURT OF JAMMU AND KASHMIR-
                                  SRINAGAR
 Case No: COD 66/2016                                    Dated : 09th of May, 2018
  TARIQ AHMAD MIR              VERSUS         SHAHID MUSHTAQ PADROO AND ANR
                         ORDER SHEET
 CORAM:
  HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
 i.      Whether to be approved for
         reporting in NET :                     Yes/No
 ii.     Whether to be approved for
         reporting in Digest/Journal :          Yes/No

FOR THE PETITIONER/s :                MR. J.A.KAWOOSA
FOR THE RESPONDENT/s: .               MR. SHABIR AHMAD DAR



01/     By medium of this                application the applicant seeks the

indulgence of this Court in condoning the delay of 537 days in filing the Civil 1st Miscellaneous Appeal (CIMA), against the Award dated 12th of July, 2014, passed by the Presiding Officer, Motor Accident Claims Tribunal (Principal District Judge), Pulwama, in a claim Petition bearing No. 11/Claim, titled Shahid Mushtaq Padroo versus Tariq Ahmad Mir & another on the grounds, inter alia, that the applicant - Appellant (respondent No.1 in the claim petition) was not aware about the passing of the Award dated 12-07-2014 as the counsel representing him before the Court below did not inform him in time. The applicant - appellant has further stated that he being the employee of respondent No.2, was mislead by him. He, by taking advantage of his illiteracy, made him to state before the authorities that the offending vehicle has been purchased by him. Respondent No.2 also made him to believe that he being the registered owner of the vehicle, the compensation, if any, awarded, is to be paid by him (the respondent No.2). The applicant - appellant has further stated that neither the counsel nor the respondent No.2 ever informed him that any evidence is to be lead in the matter. That is why, the applicant - appellant did not pursue the claim petition and was unaware of passing of the Award by the Court below. The applicant-appellant has further stated that it was only after he received a notice from the Court of learned Tribunal to cause appearance before him on 18th of March, 2016 that he came to know that an Award has been passed way back in July, 2014. The applicant-appellant has further stated that in the facts and circumstances of the case, the delay caused was neither intentional nor deliberate. 02/ The applicant-appellant has stated further that he was employed by the respondent No.2 as a driver and worked with him till the year 2008. Presently the applicant-appellant is working as a labourer. It is stated that during the winter in Kashmir valley, the labour work becomes scarce. Since he has a large family to sustain, comprising of old aged parents, three children and a widowed sister, the applicant- appellant, moves outside the State in search of livelihood. The applicant-appellant has further stated that he lives by hand to mouth and, therefore, has no means to pay the compensation in terms of the Award dated 12-07-2014, passed by the MACT, Pulwama. In the end he has prayed that the Court be pleased to condone the delay in filing the Appeal.

04/     Heard and considered.
05/     It cannot be disputed that the Law of Limitation has to be

applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant has to satisfy the Court that he/she has a sufficient cause in seeking the indulgence of the Court for not preferring the Application or Appeal within the stipulated time. The liability of satisfying the Court that the Application or Appeal was filed with due diligence rests on the shoulders of a person seeking such a relief. The Courts cannot come to the aid and rescue of the party/s, where the application for condonation of delay does not spell out sufficient cause and the approach of the applicant, in making such application, is casual and cryptic. 06/ Testing the application of the applicant - petitioner on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 6,7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, verbatim et literatim :

"6. Under the concept of welfare State, in order to promote social justice, it is the bounden duty of the State to protect and preserve public interest and public fund. Since public exchequer is incurring heavy expenses on different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is a good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal is bound to be condoned, taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of the those cases where sufficient causes were shown and proved.

7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

"2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner's own words:

..........................................

3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."

07/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 537 days in filing the appeal and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the applicant/s but in the instant case the applicant took his own time to come to the conclusion that an application for condonation of delay for filing the appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows:

"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :

"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."

4/ We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay..................... 6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."

08/ Resort can also be had to an elaborate and a lucid judgement of the Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :

"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ..................21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................31.Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."

09/ Risking repetition, what is stated here is that the applicant has been negligent in prosecuting his claim within time and the explanation offered for the delay in filing the appeal is neither plausible nor reasonable. The application appears to have been drafted recklessly without giving a proper account of the dates and details of the grounds agitated in it and to cap it all, recourse has been had to the leisure and pleasure in moving the application.

10/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :

"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.3. Sufficient cause for the delay clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."

11/ Looking at the application of the applicant from another angel, the only exception that he has taken in the application in carving out a case in his favour is that his counsel did not inform him about the passing of the Award. The law is that a party has to be vigilant in the Court proceedings. It is the duty and responsibility of the party/s to contact his/her lawyer on every date. One cannot pass the buck on to the lawyer and state that he/she was remiss and negligent in not attending the Court on the appointed date. The applicant has been callous in prosecuting his case and he has knocked at the doors of the Court after a great deal of time. The power of attorney by which the applicant authorized his counsel to represent him before the Court reads that "I/We hereby agree not to hold the Advocate or his substitute responsible for the result of the said cause in consequence of his absence from the Court when the said cause is called up for and I/We hereby agree that in the event of the whole or part the payment to be paid to the advocate remaining unpaid he shall be entitled to withdraw from the prosecution of the said cause until the same is paid". On the face of this clause, it was the duty and responsibility of the applicant to get himself acquainted with the dates fixed in the matter and apprise his counsel accordingly and the lawyer cannot be held accountable for the consequences that may arise. Even if assumed for the sake of arguments that the negligence of the counsel may give a cause to his client to project and advance an argument that his counsel was remiss and callous in discharging his obligation towards him, it cannot stretch till infinity. There is a delay of 537 days in filing the appeal and the applicant has filed the application after rising from a deep slumber. During this period, he did not, at all, take pains to enquire about the fate of his case.

12/ XXXXXXXX (this para is added to be used in future) It will be apt to mention here that the sequence of the events followed by the dates that prompted the applicant - Company to file the appeal after a long delay had to be accounted for to satisfy the Court that the delay in lodging of appeal was neither willful nor deliberate. This has not been done. The application projects a pretty dismal account. The dates and events portrayed in it reflect that the matter has been dealt with freedom and ease. What gets revealed further from the perusal of the objections of the respondent is that the application is a camouflage devised by the applicant - Company to scuttle the contempt proceedings initiated by the respondent against it and that the applicant - Company, after rising from a deep slumber, took resort to these proceedings simply to hoodwink the process of the law initiated against it to seek the implementation of the order of the Court in a contempt petition. XXXXXXXXX (added for future orders) 13/ Viewed in the context of what has been said and done above, the Court is of the considered opinion that the applicant has failed to explain the delay of 537 days in filing the application for condonation of delay for filing of the appeal. Consequently, the application for Condonation of Delay, is dismissed as barred by time. TARIQ Mota SRINAGAR.

                             09-05-2018                                         (M.K.HANJURA)
                                                                                           JUDGE




         HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR
  BA No. 54/2018
  MP No. 01/2018
                                                               Date of Order: 10.05.2018
                                            Tariq Ahmad Lone
                                                   Vs.
                                 State of J&K through SHO P/S Yaripora
  Coram:
               Hon'ble Mr Justice M. K. Hanjura, Judge
  Appearance:

  For petitioner(s):    Mr I. A. Parray, Advocate
                        Mr Aijaz Bhat, Advocate
  For respondent(s):    Mr Mehraj-ud-Din, Dy. AG.
  i/     Whether to be reported in                   Yes/No
         Press/Media?
  ii/    Whether to be reported in                   Yes/No
         Digest/Journal?

1. On 03.07.2016, the police authorities of Police Station Yaripora Kulgam, received an information through a reliable source that Tariq Ahmad Lone S/o Mohammad Ramzan Lone R/o Tangdano, Tehsil Yaripora, District Kulgam, has illegally hidden raw Poppy straw in his house. In this regard, an FIR bearing No. 83/2016 was registered against him for the commission of offences under Section 8/15 NDPS Act at Police Station Yaripora Kulgam, with which the investigation ensued. During investigation, raw Poppy straw weighing 12 Kgs and 100 gms was recovered from the house of the accused in presence of an Executive Magistrate.

The samples were taken which were sent to J&K Forensic Science Laboratory, Srinagar, for examination and analysis. The statements of the witnesses were recorded and the site plan was also prepared. The accused was found involved in the commission of offence under Section 8/15 NDPS Act, as a consequence of which he was arrested on 12.11.2017. On the completion of the investigation of the case, a charge sheet in terms of Section 173 Cr. PC was laid against the accused/applicant before the Court of Principal Sessions Judge, Kulgam.

2. The applicant filed an application for the grant of bail in his favour in the FIR aforesaid before the Ld. Additional Sessions Judge, Kulgam, which came to be rejected by an order dated 28.02.2018. Aggrieved by this order the applicant has filed another application before this Court for the grant of bail in his favour inter-alia, on the grounds, that the charge-sheet has been laid against him before the competent court, wherein the Police authorities have concluded that he is involved in the commission of offences U/s 8/15 NDPS Act. The applicant has further stated that he has been falsely implicated in the case. The mandatory provision of the NDPS Act have been violated in the case with impunity and, therefore, the detention of the applicant is illegal and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicant has been in the custody for the last more than four months by now and his continued detention has hampered him from proving his innocence. A small quantity of Narcotics has been recovered from his possession. He will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on him, in case he is admitted to bail. In the premises, the applicant has urged that he be admitted to bail for the commission of the aforesaid offences.

3. The respondents have resisted and controverted the application of the applicant chiefly on the grounds that Poppy Straw was recovered from the possession of the applicant. The applicant has committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and as such the same deserves to be rejected.

4. Heard and considered.

5. Risking repetition, what requires to be repeated and reiterated here is that the learned Additional Sessions Judge Kulgam, has rejected the bail application of the applicant. The question therefore that arises for consideration at first is whether a successive application for bail will or will not lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly when the order of the rejection of the bail is bad and perverse on the face of it. Resort can in this behalf be had from the law laid down in AIR 1978 SC page 179 wherein it has been held as under:-

"17. It is significant to note that under S. 397, Cr. PC, of the new code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under Sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 435 (4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435 (1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 439 (2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under S. 439 (2) Cr. PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary."

6. Taking a cue from the law laid down above the High Court of Bombay in the Judgement reported in Crimes Volume 3 1987 page 363, Para No.7 of which is germane to the issue has held as follows:-

"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."

7. Looking at the order of the Court of the learned Sessions Judge, Kulglam, whereby the application of the applicant for the grant of bail in his favour has been rejected, the Learned Additional Sessions Judge has stated in the order that 12 Kg & 100 gms of Poppy straw was recovered from the house of the applicant. The Learned Judge has held that even if the contraband seized from the accused does not fall within the mischief of commercial quantity, still the court is required to see whether it would be in the interest of justice to allow the accused to be admitted to bail under the provisions of 497 Cr. PC. The Learned Judge has also stated that drug peddling in the state has taken the shape of trade and the people involved in such type of nefarious crimes appear to be under the notion that they can beat the law and continue to spoil the society by their evil intentions. To nip this evil, the duty of the responsible citizens of the society become more pronounced. The learned trial court has proceeded to state in the order that the Court is cognizant of the fact that the quantity recovered from the accused is an intermediate one but its horrendous effects on the health of the gullible individuals who are lured and entrapped in this quagmire make one to cry his heart out and accordingly the learned Judge concluded that the accused is not entitled to bail.

8. What gets revealed from the order of the trial court is that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters and the scales of commercial quantity but it is an intermediatory one and, therefore, the application of the applicant had to be considered under the provisions of 497 Cr. PC. It is only on the application of the rigor of Section 37 of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr. PC. Therefore a realistic view and a pragmatic approach has to be taken in such a case.

9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of "bail or jail" in non-bailable offences Court has to utilize its judicial discretion, not only that as per the settled law the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.

The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

10.The word "judicial discretion" has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life.

Wide enough in all conscience is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable.

11. Testing at the instant application from the above perspective it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicant does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, there appears to be no reasonable ground for declining bail to the applicant. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicant falls within the scales of an intermeditory quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is "bail and not jail".

12. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicant has been languishing in the jail for the last more than four months by now. The accused has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot gets swayed by sentiments. The temper and passion have no role to play in exercising the discretion for the grant of bail.

13. In view of the preceding analysis, the applicant is admitted to bail, in case he furnishes a personal bond to the tune of Rs. 50,000/- with a surety of the like amount to the satisfaction of the learned court below on the following terms and conditions:-

(i) That he shall present himself before the Court, as and when asked to do so.

(ii) That he shall not leave the territorial limits of the jurisdiction of the trial court without seeking permission.

(iii) That he shall not tamper or intimidate the prosecution witnesses.

14. A copy of this order shall be sent to the Trial Court with utmost dispatch.

15. The application is, accordingly, disposed of, along with connected MP.

(M. K. Hanjura) Judge To be heard CAT HIGH COURT OF JAMMU AND KASHMIR-

                                                                   SRINAGAR

                                  Case No: OWP 498/2017                                         Dated : 07th of Sept. 2018
                                  MOHAMMAD MAQBOOL BHAT & ANR.                  VERSUS         UNION OF INDIA AND ORS .

                                                          ORDER SHEET
                                  CORAM:
                                   HON'BLE       MR. JUSTICE M.K.HANJURA- JUDGE
                                  i.      Whether to be approved for
                                          reporting in NET :                       Yes/No
                                  ii.     Whether to be approved for
                                          reporting in Digest/Journal :            Yes/No

                                  FOR THE PETITIONER/s :                  MS. REEHANA VICE MR. Z.A.QURESHI
 FOR THE RESPONDENT/s: . MR. SATINDER SINGH
(M.K.HANJURA)

Learned counsel for the respondents stated at the bar that in view of the provisions contained in section 29, read with section 28 of the Central Administrative Tribunal (CAT) Act, this petition has to be heard and determined by the Central Administrative Tribunal.

Learned counsel, representing the petitioners, has accepted this proposition.

In view of the above, the matter shall stand transferred to the Central Administrative Tribunal for further consideration.

Writ petition along with connected IAs, is disposed of, accordingly.

TARIQ Mota SRINAGAR.

07-09-2018                                     (M.K.HANJURA)
                                                    JUDGE
 To be heard by tribunal Armed Forces Act

HIGH COURT OF JAMMU AND KASHMIR
                              SRINAGAR

CASE NO. :          SWP 76/2010 & MP 01/2017
 MST. SAIDA BEGUM AND ANR     VERSUS    UNION OF INDIA AND ORS.

MR. MEHRAJ AZIM FOR THE PETITIONER.
MR. TAHIR SHAMSI, ASGI, FOR THE RESPONDENT/s.

Mr. Shamsi, learned ASGI, representing the respondents, has stated that in view of the provisions contained in section 14 of the Armed Forces Tribunal Act, 2007, this petition has to be heard and determined by the Armed Forces Tribunal.

Learned counsel, representing the petitioners, has accepted this proposition.

In view of the above, the matter shall stand transferred to the Armed Forces Tribunal for further consideration.

Writ petition along with connected IAs, is disposed of, accordingly.

TARIQ Mota SRINAGAR.

06-07-2017                               (M.K.HANJURA)
                                              JUDGE
                      BAIL CANNOT BE GRANTED AT
                           THRESHOLD
 HIGH COURT OF JAMMU AND KASHMIR-
                                    SRINAGAR
  Case No: CRMC 338/2018                                  Dated : 07th of Sept., 2018
   MOHAMMAD MERAJ-UD-DIN KHAN                      VERSUS      STATE AND ORS.
                ORDER SHEET
 CORAM:
   HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
  i.       Whether to be approved for
           reporting in NET :                     Yes/No
  ii.      Whether to be approved for
           reporting in Digest/Journal :          Yes/No

FOR THE PETITIONER/s :                  MR. M.AZIM - ADV.
FOR THE RESPONDENT/s: .                 MR. B.A.DAR, Sr.AAG
(M.K.HANJURA-ORAL)


01/       Notice.
02/       Notice has been waived by Mr. Dar, learned Sr.AAG,

appearing for the respondents. He has strenuously and vehemently argued that this petition cannot be maintained at this stage, when the investigation of the case is still at its infancy. Per contra, the learned counsel, representing the other side, has argued that a false and fabricated story has been projected in the F.I.R as against the petitioner, which cannot withstand the test and scrutiny of law.

03/       Heard and considered.
04/       In this petition, filed under section 561-A Cr.PC, the petitioner

has craved the indulgence of this Court in quashing the F.I.R bearing No. 37/2018 dated 31-08-2018, registered against him at Police Station, Crime Branch, Kashmir, for the commission of offences punishable u/s 420, 468, 471 RPC.

05/ Before adverting to the grounds, urged by the petitioner for seeking the aforesaid relief, the contents of the FIR require to be assessed and evaluated. The FIR delineates that a communication was received from the Additional Secretary to the Government General Administration Department (GAD), Civil Secretariat Srinagar, depicting that as per the records available with the GAD, the date of birth of Mohammad Meraj-ud-Din Khan - Commissioner Secretary to Government, ARI & Training Department (petitioner herein), is 09-11-1958. It is further stated that since the said officer is due to retire in the month of November, 2018, the Government had to issue a notification with regard to his date of retirement. Accordingly, vide communication dated 26-12-2017, the officer was asked to furnish his original Service Book along with the proof of his date of birth as spelt out in his matriculation certificate. Nevertheless, despite multiple reminders, the requisite information was not provided by the officer to the concerned Department. The competent authority, in the meantime, accorded approval to notify the date of the retirement of the officer, as on 31-11-2018 as per the available records. However, before the retirement date could be notified, the officer submitted the original Service Book before the concerned authorities, which revealed his D.O.B as 09-11-1961 instead of 09-11-1958. It is further stated in the FIR that in view of the contradictory DOBs of the officer, the matter was referred to the Director, Forensic Science Laboratory (FSL) for examination of the Service Book, vide communication dated 20-08-2018. The FSL, in terms of its report dated 27-08-2018 opined that the insertion in the first page of the original Service Book has been made at a later stage and the Provisional Certificate in the original Service Book has been pasted on the typed certificate of the Sher-i- Kashmir University of Agricultural Sciences & Technology (SKUAST). The FIR further stipulates that on the face of the above the accused has, dishonestly and fraudulently, with a mala fide intention, changed his DOB in the records of his Service Book by producing a fake certificate and such an action, on the part of the accused, prima facie, discloses the commission of the offences aforesaid. 06/ Aggrieved by the registration of the FIR, the petitioner has challenged its vires in this petition on the grounds, inter alia, that the forcible entry of the police personnel into the house of the petitioner, during the night hours, is illegal and in contravention of the guiding principles laid down by the apex Court in its various pronouncements. It is further stated that since the custody and arrest of the petitioner is illegal, therefore, the entire investigation becomes unconstitutional. It is further stated that the prosecution initiated against the petitioner is due to his protest for frequent transfers and assignments of functions not commensurate to the status of rank of a Commissioner Secretary to Government. It is further stated that the family members of the petitioner even are not allowed to visit the place of the lodgment of the petitioner. The petitioner has further submitted that none of the ingredients of section 420 RPC are made out against him and there are no circumstances that could construe wrongful gain or loss nor is there any element of deception that could put the Department at loss, as such the investigation is not called for under law. Further the expert opinion referred to in the FIR does not establish the act of forgery against the petitioner nor is there any incriminating material available with the investigating agency to connect the petitioner with the crime of forgery, and, therefore, registration of FIR for the offence, punishable u/s 468 RPC is patently illegal besides being a manifestation of misuse of power.

07/ It has further been stated that even the preliminary verification has not been conducted before the registration of the FIR. No departmental enquiry has been ordered to establish the culpability of the petitioner with regard to his DOB record in order to provide an opportunity to him to establish his innocence. On the basis of the mere opinion of the FSL, the GAD cannot go ahead with the criminal investigation of forgery, unless or until it is established, during the criminal investigation, that a forged document has been made because the reliance on the FSL report, gathered prior to the criminal investigation of the case, is of no significance. It is further stated that the registration of the FIR is nothing but an attempt of character assassination of the petitioner done for extraneous purposes. In the end, it has been prayed before the Hon'ble Court, that the FIR be quashed in order to meet the ends of justice.

08/ The petitioner has assailed the defensibility of the FIR registered against him on various counts which can be decided and determined on the culmination of the investigation of the case also, for, who knows what will be the fate of the investigation of the case and in which direction it will land. The allegations levelled against the petitioner, as is palpable from the perusal of the FIR, appear to be serious in nature, inasmuch as, it is stated that he tampered the date of birth in his service record with the aim and object to stay in the Government service for a longer period. The mandate of law justifies that the matter should be investigated into its entirety without aborting it midway. It is only after the conclusion of the investigation of the case that a definite opinion can be framed in light of the grounds agitated and urged by the petitioner in this petition. It will be too early in the day to comment as to which offence is, and which is not, made out in the case. Any comment on that count is not warranted to be made at this stage. It can be seen only after a full dressed investigation of the case.

09/ The investigation of the case cannot be scuttled, stalled, desiccated or thwarted at this stage of the initial probe in the matter. The FIR in a case like the present one cannot be quashed promptly without allowing the Investigating Agency to investigate the case appropriately. The Supreme Court has in a catena of judicial pronouncements held that the FIR cannot be quashed at the threshold itself without allowing the investigation to proceed. 10/ Viewed in the above context, the petition of the petitioner sans in merit. It entails dismissal, as a consequence of which, the same is dismissed along with connected IA. Before parting, it needs must be said that any observation made in this order shall not be taken as an observation on merits and the investigating authority shall investigate the matter on its own strength.

TARIQ Mota SRINAGAR.

07 -09-2018 (M.K.HANJURA) JUDGE BAIL IN NDPS ACT & concurrence of HC HIGH COURT OF JAMMU AND KASHMIR-

SRINAGAR Case No: B.A. 121/2018 Dated : 07th of Sept., 2018 JATINDER SINGH VERSUS STATE THROUGH P/S KULGAM ORDER SHEET CORAM:

   HON'BLE           MR. JUSTICE M.K.HANJURA- JUDGE
  i.          Whether to be approved for
              reporting in NET :                       Yes/No
  ii.         Whether to be approved for
              reporting in Digest/Journal :            Yes/No

FOR THE PETITIONER/s : MR. SHEIKH UMAR FAROOQ
FOR THE RESPONDENT/s: MR. MIR SUHAIL, AAG
(M.K.HANJURA-ORAL)



01/           On 22-02-2018, the applicant came to be apprehended by the

authorities of Police Station, Kulgam, in the wake of the recovery of 12 kgs of Poppy Straw from his possession, as a sequel to which, a case bearing F.I.R No. 44/2018, came to be registered against him for the commission of the offences punishable u/s 8/25 NDPS Act.

02/ The applicant - petitioner filed an application for the grant of bail in his favour in the aforesaid FIR before the Court of the learned Principal District & Sessions Judge, Kulgam, pleading therein that he is innocent. He has been falsely implicated in the case by the Police authorities. He has also stated that the seized contraband does not fall within the scales of the commercial quantity and, as such, the rigor of section 37 of the NDPS Act is not attracted. On these set of pleadings, the applicant implored that he be enlarged on bail. However, the learned Principal District & Sessions Judge, Kulgam, rejected his application vide an order dated 06-07-2018.

03/ Aggrieved by the order of the learned Principal District & Sessions Judge, Kulgam, the applicant has filed the instant application before this Court for the grant of bail in his favour, on the grounds, inter-alia, that the charge-sheet has been laid against him before the competent Court, wherein the police authorities have contended that he is involved in the commission of offences u/s 8/15 NDPS Act. The applicant has further stated that he has been falsely implicated in the case. The mandatory provision of the NDPS Act has been violated in the case and, therefore, any further detention of the applicant is illegal, unwarranted and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. He has been in the custody for the last so many months by now and his continued detention has hampered him from proving his innocence. It has also been added that a small quantity of Narcotics has been recovered from him and that he will not tamper with the prosecution evidence and will abide by the conditions, whatsoever, are imposed on him, in case he is admitted to bail.

04/ The respondent has resisted and controverted the application of the applicant chiefly on the ground that 12 kgs of 'Poppy straw' were recovered from his possession. He has committed a heinous offence.

The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the applicant seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected.

05/    Heard and considered.

06/    Risking repetition, what requires to be repeated and reiterated

here is that the learned Principal District & Sessions Judge, Kulgam, has rejected the application of the applicant seeking his release on bail, and the question, therefore, that arises for consideration, at first, is whether a successive application for bail will, or will not, lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly so when the order of the rejection of the bail is bad and perverse on the face of it. Resort can in this behalf be had to the law laid down in AIR 1978 SC page 179 wherein it has been held as under:

"17. It is significant to note that under S. 397, Cr. PC, of the new code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under Sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 435 (4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435 (1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 439 (2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under S. 439 (2) Cr. PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary."

07/ Taking a cue from the law laid down above, the High Court of Bombay in the Judgement reported in Crimes Volume 3 1987 page 363, (Para No.7 of which is germane to the issue), held as follows :

"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."

08/ Looking at the order of the Court of the learned Principal District & Sessions Judge, Kulgam whereby the application of the applicant for the grant of bail has been rejected, the learned Judge has held that the offence committed by the accused is serious as well as heinous. The accused is involved in the trade of contraband 'Poppy straw', which is hazardous to the health of the public at large. The offences under the NDPS Act are increasing at an alarming pace and, as such, these need to be curbed before the menace brings within its fold a major section of the society. The organized activities of the persons involved in the smuggling of narcotic drugs and psychotropic substances into the country and illegal trafficking in such drugs and substances have led to drug addiction among the youth and it has badly affected them. It is further observed that in the recent years this plague has increased alarmingly. It is a situation of serious concern and, therefore, the applicant does not deserve any concession of bail at this stage.

09/ The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of 'bail or jail' in non-bailable offences, the Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principles as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative, but the learned trial Court appears to have applied it in the reverse. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

10/ The word 'judicial discretion' has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo, "the judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains." Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is often times caprice, in the worst, it is every vice, folly and passion to which human nature is liable."

11/ Regard being had to the fact that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial category but it is an intermediary one, therefore, on the face of such an eventuality, the application of the applicant had to be considered under the provisions of 497 Cr. PC. It is only on the application of the rigor of Section 37 of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.

12/ To categorize the materials, in terms of quantity as small, medium and commercial, is to allow escape routes for those to whom the rigor of section 37 NDPS Act does not apply. Had the intention of the legislators been to treat those who are found to be in possession of the small and medium quantity of the drugs and Narcotic substances on par with those from whom commercial quantity of such substances is recovered, it could not have pierced and scaled it in different scales and categories. The conflict between the human tendencies and the rules of society is an eternal one which cannot ever be solved or ended to the entire satisfaction of idealistic puritans. World of human society will always remain imperfect. It creates a false ethical self-importance on the part of the Courts who sit in judgment to decide or determine such cases not in accordance with the law but by sentimental proverbs.

13/ Testing the instant application from the above perspective, it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicants does not fall within the parameters of the offences that are punishable with death or imprisonment of life.

Therefore, there appears to be no reasonable ground for declining bail to the applicant. The maxim of the law of bails, which has its application to the case on hand where the quantity of contraband recovered from the applicant falls within the scales of an intermediary one, for which the punishment provided is upto 10 years and a fine of rupees one lac, is, "bail and not jail".

14/ Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty, has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person.

The applicant has been languishing in the jail for so many months by now. He has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot get swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail.

15/ In view of the preceding analysis, the applicant is admitted to bail, in case he furnishes a personal bond to the tune of Rs. 50,000/-

with a surety of the like amount to the satisfaction of the Court below on the following terms and conditions :

(i) That he shall present himself before the Court, as and when asked to do so.

(ii) That he shall not leave the territorial limits of the jurisdiction of the trial Court without seeking permission.

(iii)That he shall not tamper or intimidate the prosecution witnesses.

16/ A copy of this order shall be sent to the Trial Court with utmost dispatch.

17/ The bail application of the applicant is, accordingly, disposed of along with connected MP(s).

TARIQ Mota SRINAGAR.

07-09-2018                                               (M.K.HANJURA)
                                                                     JUDGE

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