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2020 DIGILAW 608 (JK)

Makhan Din v. Union Territory of J&K

2020-11-20

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Challenge in this petition is thrown to the order No.PSA/102 of 2020 dated 22.05.2020 issued by the District Magistrate, Kathua (for brevity “Detaining Authority”) whereby Makhan Din son of Sarwar Din, resident of village Chack Desa Choudhrian, Tehsil Marheen District Kathua (for short “detenu”) has been placed under preventive detention directing his lodgement in Central Jail, Jammu. 2. Detenu has contended that the grounds of detention and the material in support thereof has not been furnished to him; that the impugned detention order has been passed by the Detaining Authority mechanically without application of mind; that the detenu has not been informed about his right to make representation before the Detaining Authority against the impugned detention order; that the grounds of detention are mere reproduction of dossier which shows non application of mind on the part of the Detaining Authority; and that the translated script in Gojri language of the material forming the basis of the grounds of detention has not been supplied to the detenu. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenu has been detained only after following due procedure; that the grounds of detention were read over to the detenu; that there has been proper application of mind for detaining the detenu and that the detenu has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and I have also gone through detention record. 5. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and I have also gone through detention record. 5. Learned counsel for the detenu, while seeking quashment of the impugned order, projected various grounds but the main grounds that have prevailed during discussion are: (I) That the grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not himself prepared the grounds of detention which is pre-requisite for him before passing any detention order, thus non-preparation of grounds of detention by the detaining authority renders the impugned order bad in law; (II) That the detenu has been disabled from making an effective representation against his detention as the translated copies of grounds of detention have not been supplied to him; and (III) That the detenu has not been informed about his right to make representation before the Detaining Authority against the impugned order of detention. 6. In rebuttal, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the activities of the detenu were detrimental to the society at large as he was a person of criminal antecedents for the reason that many FIRs were registered against him and in one of the FIRs, he has been found to be involved in smuggling of bovine animals without proper permission from the competent Authorities. It is contended that the detenu is presently in police custody in FIR No. 216/2016 and there is every likelihood that the detenu is likely to get bail and there is every likelihood that after coming out of jail, the detenu will again indulge in criminal activities and therefore, it is necessary to detain him. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenu and in token of having received the same, the detenu has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenu in the language understood by him. 7. Before considering rival contentions of the parties, it will be necessary to understand the backdrop of the legal position pertaining to application of preventive detention laws. It is also urged that the contents of the documents were read over and explained to the detenu in the language understood by him. 7. Before considering rival contentions of the parties, it will be necessary to understand the backdrop of the legal position pertaining to application of preventive detention laws. The said laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable. For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance of public order has to be dealt with iron hand but the Constitutional safeguards as are available are also to be followed. Article 21 of the constitution of India has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word “established” is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in strict conformity with law authorizing detention, the detenu is entitled to be released. 8. Preventive detention, in effect, is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, being an exception to Article 21, has to be reasonable and not based on the ipse dixit of the detaining authority. Preventive detention, wherever permissible, has to adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. Preventive detention, being an exception to Article 21, has to be reasonable and not based on the ipse dixit of the detaining authority. Preventive detention, wherever permissible, has to adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. The Supreme Court in a catena of judgments has made it clear as to what is the value of the ‘constitutional Safeguard’ and as to what is the value of right to liberty guaranteed under Article 21 of the Constitution of India. In this context, it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by the Supreme Court in case captioned “Rekha Vs. State of Tamil Nadu and anr”, reported in (2011) 5 SCC 244 : “37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. 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.” As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179) “...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law”. 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically Society’s assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience”. 9. Preventive detention, as held in “A. K. Gopalan v. State of Madras” [ 1950 SCR 88 ] and reiterated in “Rekha v. State of Tamil Nadu”[ AIR 2011 SCW 2262 ], is by its very nature repugnant to democratic ideals and an anathema to the rule of law. 9. Preventive detention, as held in “A. K. Gopalan v. State of Madras” [ 1950 SCR 88 ] and reiterated in “Rekha v. State of Tamil Nadu”[ AIR 2011 SCW 2262 ], is by its very nature repugnant to democratic ideals and an anathema to the rule of law. The Supreme Court in Rekha’s case (supra), while emphasizing that Article 22(3)(b) of Constitution of India, is to be read as an exception to Article 21 of the Constitution and not allowed to nullify the right to personal liberty guaranteed under the later, observed as under: “Since, however, 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 to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long arduous, historic struggle. It follows therefore that if law of land (Indian Penal Code and other penal statues) can deal with the situation, recourse to the preventive detention law will be illegal.” 10. The Court further 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 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 the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.” 11. In “Kamleshwar Ishwar Prasad Patel Vs Union of India and Others” [(1995) 2 SCC 51] the Supreme court observed: “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 rigour cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenu.” 12. 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 the nature of alleged activities of the detenu.” 12. The baseline, that emerges from the above overview of case law on the subject of preventive detention is that whenever preventive detention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to. 13. Keeping in view the hallmark of the cherished right to liberty in keeping with the object of Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing. 14. While going through the detention records, as produced, the first ground projected by the learned counsel for the detenu gets support from the material on record. The grounds of detention are replica of dossier with interplay of some words here and there, which exhibits non-application of mind and in the process deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier. Here it will be apt to notice the observations of the Supreme Court in the case of “Jai Singh and ors vs. State of J&K” ( AIR 1985 SC 764 ), which are reproduced hereunder: “First taking up the case of Jai Singh, the first of the detenus before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of …….” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into ‘you’ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.” 15. From a perusal of the aforesaid observations of the Supreme Court, it is clear that the ground of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. Adverting to the facts of the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non-application of mind on the part of the Detaining Authority. The impugned order of detention, therefore, becomes legally unsustainable. 16. It is next contended by learned counsel for the detenu that the detenu being an illiterate person has been disabled from making an effective representation because the detention order and the grounds of detention furnished to him are in English language and, thus, the detenu has lost a valuable right of making a representation against the detention order. 17. As per the record produced by the learned counsel for the respondents, the detenu is an illiterate person. Thus, he would not have been in a position to read the contents of the grounds of detention. As per the execution report which is attached to the counter affidavit filed by respondent No.2, the contents of detention warrant and the grounds of detention are stated to have been read over and explained to the detenu in Urdu/Hindi language. Thus, he would not have been in a position to read the contents of the grounds of detention. As per the execution report which is attached to the counter affidavit filed by respondent No.2, the contents of detention warrant and the grounds of detention are stated to have been read over and explained to the detenu in Urdu/Hindi language. The execution report appears to bear the thumb impression of the detenu which means that he is an illiterate person. It is specifically pleaded by the detenu that he understands Gojri language and that the translated version of the grounds of detention has not been furnished to him. 18. Learned counsel for the respondents has contended that in the case of a totally illiterate person, it hardly makes a difference whether the grounds of detention and the material in support thereof furnished to the detenu is in English language or in any other language. In this regard, the learned counsel has referred to the judgment of this Court in the case of Rustum Wani vs. State of J&K (LPA(HC) No. 57.2001, decided on 20.08.2001) . 19. It may be correct to state that in the case of a totally illiterate person, the language in which the grounds of detention and the material in support thereof are furnished to the detenu may not be material, but at the same time, it is equally true that, the detenu at least should be explained the grounds of detention and the material in support thereof in the language which he understands. In the instant case, admittedly the grounds of detention have been read over to the detenu in English language and the same have been explained to him in Urdu/Hindi language which means that the grounds of detention have not been explained to the detenu in Gojri, the language that he could understand. 20. The service of the grounds of detention on the detenu is a very precious constitutional right and the object behind the same is to enable the detenu to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenu unless he is in a position to understand the same. In my view I am fortified by the judgments rendered by the Supreme Court in the case “Chaju Ram Vs. The State of Jammu & Kashmir” reported in AIR 1971 SC 263 . It will be an empty formality to supply the grounds of detention to the detenu unless he is in a position to understand the same. In my view I am fortified by the judgments rendered by the Supreme Court in the case “Chaju Ram Vs. The State of Jammu & Kashmir” reported in AIR 1971 SC 263 . Following portion from para 9 of the judgment shall be quite apposite to quote: “……. The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable right to the detenu to make a representation which right is frustrated by handling over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.” 21. The execution report suggests that the grounds of detention and the contents of the impugned detention order were read over and explained to the detenu by one SI Ved Parkash (No.109605/EXJ) of Police Station, Rajbagh. It is the case of the respondents that the said executing official has read over and explained the grounds of detention to the detenu in Urdu/Hindi language. Thus, it is clear that the grounds of detention have not been explained to the detenu in the language which he understands i.e. Gojri language. Even the assertion of the respondents that the grounds of detention were explained to the detenu in Urdu/Hindi language is not supported by affidavit of the executing official. 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 detenu, to file an affidavit in order to attach a semblance of fairness to his actions. 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 detenu, to file an affidavit in order to attach a semblance of fairness to his actions. This requirement has not been followed in the instant case, at least the record suggests the same. 22. Apart from the above, though the respondents have claimed that they have furnished not only the grounds of detention but the material in support thereof to the detenu, yet, the report of execution reveals that only the detention warrant and the grounds of detention have been handed over to the detenu. In the absence of material forming the basis of grounds of detention, the detenu has been deprived of his right to make an effective representation before the Detaining Authority against the impugned detention order. Thus, the safeguards provided under Article 22(5) of the Constitution of India have been observed in breach by the respondents in the instant case rendering the impugned order of detention unsustainable in law. 23. It has also been argued by learned counsel for the detenu that the detenu was not informed by the Detaining Authority with regard to his right to make representation before the Detaining Authority against the impugned detention order. According to the learned counsel, omission on the part of respondent No.2 in this regard renders the impugned order of detention unsustainable in law. 24. A perusal of the impugned detention order reveals that the detenu has been informed by respondent No.2 with regard to his right to make an effective representation before the Home Department and there is nothing on record to suggest that he was informed of his right to make a representation to the Detaining Authority against the impugned detention order. 24. A perusal of the impugned detention order reveals that the detenu has been informed by respondent No.2 with regard to his right to make an effective representation before the Home Department and there is nothing on record to suggest that he was informed of his right to make a representation to the Detaining Authority against the impugned detention order. The Supreme Court has, in the case of State of Maharashtra vs. Santosh Shankaracharya, (2000) 7 SCC 468, while interpreting the provisions of Section 8(1) and Section 14(1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Boot-leggers, Drugs Offenders and Dangerous Persons Act, 1981, which are in pari materia with the provisions of Section 13(1) and Section 19(1) of J&K Public Safety Act respectively, observed as under: “The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumars case (supra) would apply notwithstanding the fact that in Kamlesh Kumars case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA”. 25. From the aforesaid enunciation of law on the subject, it is clear that non-communication of the fact that the detenu has a right to make an effective representation to the Detaining Authority against the detention order so long as the order of detention has not been approved by the Government constitutes violation of valuable right of the detenu under Article 22(5) of the Constitution. That being the position in the instant case, the impugned order of detention is not sustainable in law. 26. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the detenu. The impugned order of detention bearing No. PSA/102 of 2020 dated 22.05.2020 issued by the District Magistrate, Kathua is, therefore, unsustainable. Accordingly, the same is quashed. The detenu is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The record, as produced, be returned to the learned counsel for the respondents.