Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Ahmad Kumar vs State Of J&K; And Others on 29 November, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP No.252/2017
Date of Decision: 29.11.2017 Ishfaq Ahmad Kumar v.
State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr Wajid Haseeb, Adv vice Mr Mir Shafqat Hussain, Advocate For respondent(s): Mr Asif Maqbool, GA Whether to be reported in Digest/Journal? Yes
1. Impugned is order no.71/DMB/PSA/2017 dated 17 th July 2017, whereby District Magistrate, Baramulla (respondent no.2), has, in exercise of powers under clause (a) of Section 8 of J&K Public Safety Act, 1978, placed one Shri Ishfaq Ahmad Kumar @ Ishfaq son of Abdul Majeed Kumar resident of Kumar Mohalla, Khanpora, District Baramulla (for brevity "detenue") under preventive detention and directed his lodgement in Central Jail Kotebhulwal, on the grounds, submissions and averments enumerated in writ petition.
2. The case set up by petitioner in petition on hand is that detenu was arrested by security forces in the month of November 2016 from his home and taken to some security camp, where he was detained for many days and thereafter he was shifted to police station Baramulla, where he was implicated in case FIR no.266/2016. Bail, beseeched for, was granted by court of competent jurisdiction on 15th November 2017. Bail Order, it is next pleaded, was served upon concerned quarters and detenu was released from custody.
However, thereafter, detenu was called to police station Baramulla in the first week of July 2017. He in compliance to bail condition went to police station, HCP no.252/2017 Page 1 of 21 2 but he was detained for several days and consequently implicated in case FIR no.259/2016. Detenu is averred to implored for bail. He was enlarged on bail by court of competent jurisdiction vide order dated 15th July 2018. Bail order was served upon police station, but, as claimed by petitioner, detenu was not released and was shifted to Central Jail Kotebhalwal, Jammu, which was followed by detention order, impugned herein. This has forced petitioner to knock at portals of this Court with petition on hand beseeching quashment of impugned detention order.
3. Counter Affidavit has been filed by respondents. Detenu, according to respondents, has been detained in pursuance of impugned order of detention as he is an incorrigible anti-social element, who has been involved with anti- national elements and voluntarily got indulged in stone pelting incidents in various areas of Baramulla as and when there is an opportunity, particularly whenever there is a call for Hartal/protest given by separatist amalgam. It is insisted that detenu is mainly responsible for organizing anti government protests and also instigating the youth of old Town Baramulla and its adjacent areas to create an atmosphere of fear and chaos among the people of the area. Detenu is stated to be involved in case FIR nos.259/2016, 266/2016, 323/2013 registered in police station Baramulla. Consequently, police concerned is stated to have prepared a dossier and while finding that activities of detenu are prejudicial to maintenance of public order and normal law of land is not sufficient to deter detenu from his nefarious activities and forwarded dossier along with record to respondent no.2 with the recommendations to order preventive detention of detenu. While examining dossier and after perusing material, it was found that detenu's activities were prejudicial to maintenance of public order, as such, in the facts and circumstances of the case, preventive detention of detenu was found necessitated by detaining authority, is the contention that has been made by respondents in the Reply. As a result whereof, order of detention, impugned in this petition, was issued, with a view HCP no.252/2017 Page 2 of 21 3 to prevent him from acting in any manner which is, according to respondents, threat to the maintenance of public order. The warrant is averred to have been forwarded to Senior Superintendent of Police, Baramulla, in duplicate for execution under Section 9 of the Act of 1978 and pursuant to the detention order, warrant was executed through ASI Bashir Ahmad no.EXK/ 811245 on 17th July 2017, who on 18th July 2017, handed over detenu to Deputy Superintendent, Central Jail, Jammu Kot Bhalwal, who took over the detenu against proper receipt and lodged him in the said Jail. It is claimed by respondents that grounds of detention were read over, explained and served to the detenu along with a communication no.DMB/PSA/2017/ 441-45 dated 17th July 2017, whereunder he was made aware about his preventive detention and he was informed that he had a right to file representation to the Government against the detention, which as per record shows not to have been filed by detenu.
4. Heard and considered.
5. Learned counsel for petitioner, to bolster what has been submitted and averred in petition on hand, states that the cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by police in order to justify its illegal action of detaining detenu and that the case FIRs in which petitioner was arrested, had been registered in the month of July- September 2016 and for seven long months no effort was made by police to arrest detenu in the cases otherwise than he had been arrested and admitted to bail, though he was all along available. He, thereafter, asserts that allegations made in grounds of detention are vague, non-existent and no prudent man can make a representation against such allegation and passing of detention on such grounds is unjustified and unreasonable and that detaining authority has mentioned two FIRs in grounds of detention, but, according to learned counsel, the allegations against detenu are far from reality. The allegations as reflected in the grounds of detention, as vehemently maintained by learned HCP no.252/2017 Page 3 of 21 4 counsel for petitioner, are vague and do not justify passing of detention order on the basis of such allegations and that detaining authority has not given any reasonable justification to pass detention order, and therefore, impugned order suffers from complete non-application of mind on part of detaining authority. His next averment is that detention order has been passed after delay of more than ten months from the date the alleged criminal activity, which has been made basis for satisfaction for passing of impugned order of detention and during the period of delay no fresh activity has been attributed to detenu. The unexplained delay has snapped proximity of detention order with the time its alleged requirement arose and detaining authority has not given any explanation for the delay in passing impugned order of detention. His next contention is that detenu was already admitted to bail in case FIR no.266/2016 and 259/2016 and despite being aware that detenu has been released from custody and is at large detaining authority has not attributed any fresh activity which would have warranted passing of order of detention and detaining authority has in mechanical manner mentioned that normal law has not proved sufficient whereas his own grounds negate this contention. Learned counsel proceeds to further avow that detenu was arrested in the month of November 2016 and was thereafter implicated in two cases and was afterwards admitted to bail and released from custody and that all cases, mentioned in grounds of detention, relate to the point of time prior to his arrest, the grounds of detention as such, lack reasonable necessity to pass detention order when in normal course detenu has been arrested and thereafter released. If on these grounds no necessity was felt in the month of November 2016, then there is no reasonable ground to pass order of detention now on these grounds. Learned counsel for petitioner asserts that respondent no.2 has not furnished relevant material, like copy of dossier, order of detention and so-called connected material as per record furnished to detaining authority by police and relied upon by detaining authority for passing impugned order of HCP no.252/2017 Page 4 of 21 5 detention, nor relevant material, like copy of FIR, statement under Section 161 Cr. P.C. of the cases mentioned in the grounds of detention, seizure memos, arrest memos, bail orders have been furnished to detenu to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel apprehensions nurtured by detaining authority concerning alleged involvement of detenu in alleged activities, against the said order to the competent authority of detenu in alleged activities, against the said order to competent authority since filing of an effective representation is a constitutional right and to enable detenu to file such a representation it is necessary to provide him copies of dossier, connecting material to detenu, therefore, constitutional right guaranteed to detenu under Article 22(5) of the Constitution of India stands infringed.
6. Per contra learned counsel for respondents states that the material, which was relied by detaining authority, was furnished to detenu besides grounds of detention along with order of detention was supplied to detenu against proper receipt and grounds of detention are precise, proximate, pertinent and relevant and that there is no vagueness or staleness in grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention and the incidents clearly substantiate subjective satisfaction arrived at by detaining authority.
7. The reverence of life is insegragably concomitant with the dignity of a human being who is basically divine, not obsequious. A human personality is indued with potential infinitude and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, "a brief candle", or "a hollow bubble". The spark of life gets more splendiferous when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of "creative intelligence". When a dent is created in the HCP no.252/2017 Page 5 of 21 6 reputation, humanism is paralysed. Reverence for the nobility of a human being has to be the cornerstone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of precautionary incarceration. Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, "the reverence of life offers me my fundamental principle on morality". The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands.
8. Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order of three months, or any other period(s), is a punishment of that particular period's incarceration. What difference is it to detenu whether his immurement is called preventive or punitive? Besides, in cases of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence. Preventive detention is every so often described as a 'jurisdiction of suspicion', Detaining authority passes detention order on subjective satisfaction. Preventive detention is, by nature, HCP no.252/2017 Page 6 of 21 7 repugnant to democratic ideas and an anathema to rule of law. Since Clause (3) of Article 22 specifically excludes applicability of clauses (1) and (2), detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with procedural safeguards, howsoever technical, is mandatory and vital.
9. The Supreme Court in Rekha v. State of Tami Nnadu AIR 2011 SCW 2262, while making reference to law laid down in Kamleshwar Ishwar Prasad Patel v. Union of India and Others (1995) 2 SCC 51, observed that history of liberty is history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of nature of alleged activities of detenu. The Supreme Court quoted with approval the observation made in Ratan Singh v. State of Punjab and others 1981 (4) SCC 481, emphasising need to ensure that the Constitutional and Statutory safeguards available to a detenu were pursued in letter and spirit 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 detenu's."
10. Procedural requirements are only safeguards available to a detenu, for the reason that the Court is not expected to go behind subjective satisfaction of detaining authority. As laid down by the Supreme Court in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and another (1987) 2 SCC 22, 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.
11. From the above overview of case law on the subject of preventive HCP no.252/2017 Page 7 of 21 8 detention, the baseline, that emerges is that whenever preventive detention is called in question in a court of law, first and foremost task before the Court is to see whether procedural safeguards guaranteed under Article 22(5) of the Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to.
12. Preventive detention is a serious invasion of personal liberty and meagre safeguards that the Constitution provides against improper exercise of the power, must be jealously watched and enforced by the Court, has been said by the Supreme Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi and ors 1953 SCR 708. Detenu has a right, under Article 22(5), to be furnished with particulars of grounds of his detention, sufficient to enable him to make a representation, which on being considered may give relief to him. This Constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, and if same has not been done, detention cannot be held to be in accordance with the procedure established by law within meaning of Article 21. The detenu is, therefore, entitled to be released and set at liberty.
13. The right which detenu enjoys under Article 22(5) is of immense importance. In order to properly grasp submissions of petitioner avowed in petition on hand, Article 22(5) is gainful to be reproduced hereunder:
"22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
14. This Article of the Constitution can be broadly classified into two categories: (i) the grounds on which the detention order is passed must be communicated to the detenu as expeditiously as possible; and (ii) proper opportunity of making representation against order of detention be provided.
HCP no.252/2017 Page 8 of 21 915. The Constitution Bench of the Supreme Court, more than six decades ago, has interpreted Article 22(5) of the Constitution in Dr Ram Krishan Bhardwaj v. The State of Delhi and others, 1953 SCR 708, observed as under:
".......Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith."
16. In Shalini Soni (Smt.) & Others v. Union of India and Others (1980) 4 SCC 544, it was aptly observed that the accused must have proper opportunity of making an effective representation. The Court observed thus:
"...Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, It is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in HCP no.252/2017 Page 9 of 21 10 to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is dear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'.
17. In Icchu Devi Choraria (Smt.) v. Union of India and others (1980) 4 SCC 531, the Supreme Court dealt with in great detail significance of clause (5) of Article 22 and subsection 3 of Section 3 of COFEPOSA Act. The court observed:
"Now it is obvious that when Clause (5) of Article 22 and Sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated, in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, HCP no.252/2017 Page 10 of 21 11 Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of Clause (5) of Article 22 read with Section 3, Sub-
section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to Clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of Clause (5) of Article 22 read with Section 3, Sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void."
18. The Supreme Court in Khudiram Das v. State of West Bengal and others (1975) 2 SCC 81, observed that Article 22(5) insists that all basic facts and particulars which influenced detaining authority in arriving at requisite satisfaction leading to passing of order of detention, must be communicated to detenu. Para 13 of said judgement is seemly to be reproduced hereunder:
"....... Section 8(1) of the Act, which merely re-enacts the constitutional requirements of Article 22 (5), insists that all basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to HCP no.252/2017 Page 11 of 21 12 produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority."
19. In Vakil Singh v. State of J&K and another (1975) 3 SCC 545, the Supreme Court clarified that grounds mean materials on which order of detention was primarily based, that is to say, all primary facts though not subsidiary facts or evidential details. In Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra and others (1980) 4 SCC 624, the Supreme Court observed at paragraph 16 in the following terms:
"The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its constitutional responsibility to supply all the basic facts and materials relied upon in the grounds to the detenu. In the instant case, the grounds contain only the substance of the statements, while the detenu had asked for copies of the full text of those statements. It is submitted by the learned Counsel for the petitioner that in the absence of the full texts of these statements which had been referred to and relied upon in the grounds 'of detention', the detenus could not make an effective representation and there is disobedience of the second constitutional imperative pointed out in Khudiram's case. There is merit in this submission."
20. In S. Gurdip Singh v. Union of India and others (1981) 1 SCC 419, The Supreme Court, while reiterating legal position, observed that failure to furnish documents or materials which formed the basis of detention order along with grounds of detention and even on demand subsequently made by detenu, would amount to failure to serve grounds of detention and, therefore, would vitiate detention order and make it void ab initio.
21. In Khudiram Das's case (supra), Article 22 has been succinctly analysed. The Supreme Court observed that detaining authority cannot whisk away a person and put him behind bar at its own sweet will. It must have grounds for doing so and those grounds must be communicated to detenu as expeditiously as possible, so that he can make effective representation against order of detention. It was further observed that Article 22 provides various HCP no.252/2017 Page 12 of 21 13 safeguards calculated to protect personal liberty against arbitrary restraint without trial. These safeguards are essentially procedural in character and their efficacy depends on the care and caution and the sense of responsibility with which they are regarded by the detaining authority. These are barest minimum safeguards which must be strictly observed by an executive authority.
22. A four-Judge Bench of The Supreme Court in Golam alias Golam Mallick v. State of West Bengal (1975) 2 SCC 4, reiterated the legal position. The Supreme Court observed as under:
"No doubt, Clause (5) of Article 22 of the Constitution and Section 8 of the Act do not, in terms, speak of 'particulars' or 'facts', but only of 'grounds' to be communicated to the detenu. But this requirement is to be read in conjunction with and subservient to the primary mandate:
"and shall afford him the earliest opportunity of making a representation against the order", in the aforesaid Clause (5). Thus construed, it is clear that in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. All the basic facts and material particulars, therefore, which have influenced the detaining authority in making the order of detention, will be covered by "grounds" within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against public interest."
23. In Mohd. Alam v. State of West Bengal, (1974) 4 SCC 463, the Supreme Court observed that the non-communication of material was violative of Article 22(5) of the Constitution and the Act, inasmuch as it did not intimate to detenu full grounds or material to enable him to make an effective representation.
24. In Kirit Kumar Chaman Lal Kundaliya v. Union of India and others (1981) 2 SCC 436, it was observed that once the documents are referred to in the grounds of detention it becomes bounden duty of detaining authority to HCP no.252/2017 Page 13 of 21 14 supply the same to detenu as part of grounds or pari passu grounds of detention. In the case of Ramachandra A. Kamat v. Union of India an dothers (1980) 2 SCC 270, the Supreme Court clearly held that even the documents referred to in the grounds of detention have to be furnished to the detenu.
25. In Tusha Thakker (Shri) v. Union of India and others (1980) 4 SCC 499, the Supreme Court mentioned that the detenu had a Constitutional right under Article 22(5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition.
26. In Ram Baochan Dubey v. State of Maharashtra and Another (1982) 3 SCC 383, this Supreme Court reiterated the legal position and observed that mere service of the grounds of detention is not a compliance of the mandatory provisions of Article 22(5) unless the grounds are accompanied with the documents which are referred to or relied on in the grounds of detention. Any lapse would render the detention order void. In Sophia Mohd. Bham v. State of Maharashtra and others (1999) 6 SCC 593, it was observed that effective representation by the detenu can be made only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion were supplied to him.
27. In District Collector, Ananthapur & Another v. V. Laxmanna (2005) 3 SCC 663, the Supreme Court again reiterated that the documents and materials relied upon by the detaining authority must be supplied to the detenu for affording him opportunity to make effective representation.
28. It may be mentioned here that preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent HCP no.252/2017 Page 14 of 21 15 him before the detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenu by the Constitution and the preventive detention law, should be strictly followed. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by the Supreme Court in A.S. Mohd. Rafi Vs. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali Vs. State of Assam, JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell Vs. Alabama, 287 U.S. 45 (1932) "Even the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 this Supreme Court observed:
"...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the HCP no.252/2017 Page 15 of 21 16 Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54."
29. The Constitution Bench of the Supreme Court in M. Nagaraj & ors. Vs. Union of India & ors. (2006) 8 SCC 212, observed:
"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."
30. The Nine Judge Constitution Bench of the Supreme Court in I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1, observed:
"It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & "transcendental", & inalienable, and primordial";.
31. In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in the lead role in stone pelting incidents and has been creating law and order problem in old town and its adjacent areas and in order to accomplish antisocial agency, he resorted to stone pelting and has turned into a notorious stone pelter. And in this connection, criminal cases are already going on against detenu under various provisions of the Ranbir Penal Code and if he is found guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing HCP no.252/2017 Page 16 of 21 17 laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha's case (supra), while emphasising need to adhere to procedural safeguards, observed:
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion", The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. 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."
32. The Constitution of India - Article 22(5) and Section 13, J&K Public Safety Act 1978, guarantee two important safeguards to detenu - first that detenu is informed of grounds of detention that prompted detaining authority to pass detention order and second that detenu is allowed to represent against his detention immediately after order of detention is made or executed. The Constitutional and Statutory safeguards guaranteed to detenu are to be meaningful only if detenu is handed over material referred to in grounds of detention that lead to subjective satisfaction that preventive detention of detenu is necessary to prevent him from acting in any manner prejudicial to the security of the State or public order and further it is ensured that the grounds of detention are not vague, sketchy and ambiguous so as to keep the HCP no.252/2017 Page 17 of 21 18 detenu guessing about what really weighed with the detaining authority to make the order.
33. Learned counsel for petitioner states, and rightly so, that respondents have not tendered explanation whatsoever as to why order of detention has been issued after such a long inasmuch as there is delay of more than ten months from the date of alleged criminal activity, which has been made edifice for satisfaction to pass impugned order of detention and during the period of delay no fresh activity has been attributed to detenu. The unexplained delay has snapped proximity of detention order with the time its alleged requirement arose and detaining authority has not given any explanation for the delay in passing impugned order of detention. The question qua delay in issuing order of detention has been held to be a valid ground for quashing an order of detention. The question whether prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when order of detention is made or live-link between prejudicial activities and purpose of detention is snapped, depends on the facts and circumstances of each case. However, when there is undue and long delay between prejudicial activities and passing of detention order, the court has to scrutinise whether 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 casual connection has been broken in the circumstances of each case. The delay caused in the present case in issuing the order of detention has not been explained. In fact, no reason has been assigned at all by detaining authority while passing impugned order of detention, which vitiates impugned order of detention. As a sequel thereto, impugned order of detention is liable to be quashed. [See: T.A.Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796].
HCP no.252/2017 Page 18 of 21 1934. It is germane to point out here that individual liberty is a cherished right that is one of most valuable fundamental rights guaranteed by our Constitution to citizens of the country. In the scheme of Constitution, utmost importance has been given to life and personal liberty of individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention, there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of the India, have to be scrupulously adhered to. Procedural reasonableness, which is invoked, cannot have any abstract standard or general pattern of reasonableness. The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions.
35. The history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the Court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is of great importance. Personal liberty protected under Article 21, is so sacrosanct and so high in the scale of constitutional values that it is the obligation of detaining authority to show that impugned detention meticulously accords with the procedure established by law. However, the constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State's security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In a case of preventive HCP no.252/2017 Page 19 of 21 20 detention, no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, when a person's greatest of human freedoms, i.e. personal liberty, is deprived, the laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, has to be mandatorily made. Reference in this regard is made to Haradhan Saha v. The State of West Bengal & Others, (1975) 3 SCC 198 and Union of India v. Paul Manickam & Another, (2003) 8 SCC 342.
36. It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme Court in V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time-consuming in 'curbing the evil he spreads', is illegal and that detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws, the Supreme Court observed. 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. To classify the detenu as a 'notorious stone pelter' cannot be sufficient to invoke the statutory powers of preventive detention. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that HCP no.252/2017 Page 20 of 21 21 has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha's case and V. Shantha v. State of Telangana case (supra) and Sama Aruna v. State of Telengana AIR 2017 SC 2662.
37. For the reasons discussed above, the petition is allowed and detention order no.71/DMB/PSA/2017 dated 17th July 2017, passed by District Magistrate, Baramulla - respondent no.2, directing preventive detention of Ishfaq Ahmad Kumar @ Ishfaq son of Abdul Majeed Kumar resident of Kumar Mohalla, Khanpora, District Baramulla, quashed. Respondents are directed to set detenu at liberty if not required in any other offence. Disposed of.
( Tashi Rabstan ) Judge Sirnagar 29th November 2017 Ajaz Ahmad HCP no.252/2017 Page 21 of 21