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2022 DIGILAW 618 (JK)

Shah-e-jahan Pandith v. Union Territory of J & K

2022-11-09

MOHD.AKRAM CHOWDHARY

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JUDGMENT Mohd. Akram Chowdhary, J. - In this Habeas Corpus Petition, petitioner challenges the Detention Order No. 39/DMP/PSA/21 dated 18.10.2021 passed by District Magistrate Pulwama (respondent No. 2), under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (for short the 'Act'), directing preventive detention of the detenue herein in order to prevent him from acting in any manner prejudicial to the maintenance of the security of the State. 2. Pursuant to notice, respondents have filed their reply, wherein they have stated that the detenue came to be detained under the provisions of the Act of 1978 validly and legally by virtue of the impugned detention order. While doing so, all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority, indisputably keeping in mind the very object of law of preventive detention being not punitive but only preventive. The detaining authority was of the opinion that the normal law has not proved deterrent and the detenue has not mended his subversive activities. Since the activities of the detenue were highly prejudicial to the security of the State and there was every likelihood that he will again indulge in same activities, it was necessary to prevent him from acting in such activities, accordingly, he has been detained strictly in accordance with the provisions of the Act. 3. The preventive detention of the detenue is challenged on various grounds inter alia that the detaining authority has passed the order of detention on the basis of dossier and other connected documents submitted by the Senior Superintendent of Police Pulwama. No relevant documents/material were provided to the detenue depriving him of a valuable right of making effective and meaningful representation. It is further contended that normal law was never invoked nor it is mentioned anywhere in the grounds of detention that the normal law was ever invoked and the detaining authority has made this assumption without any basis. On this ground also the order suffers from non-application of mind and deserves to be quashed. 4. Learned counsel for the detenue submitted that non-application of mind by the detaining authority is writ large from the grounds of detention, which is nothing more than the reiteration of the contents of the dossier furnished by the Superintendent of Police Pulwama and the detaining authority has acted mechanically. 4. Learned counsel for the detenue submitted that non-application of mind by the detaining authority is writ large from the grounds of detention, which is nothing more than the reiteration of the contents of the dossier furnished by the Superintendent of Police Pulwama and the detaining authority has acted mechanically. It is his further submission that normal law in such circumstances was sufficient to prevent the detenue from indulging in alleged activities prejudicial to the security of the State. In this regard learned counsel for the detenue has taken reliance on various judgments. 5. It is being also contended that it would be in fundamental breach of Article 22(5) of the Constitution of India if the detenue is not provided relevant documents on the basis of which detaining authority has arrived at subjective satisfaction. Since the detenue would be disabled to submit a meaningful and effective representation, breach of same cannot be countenanced on any count. 6. Learned Dy. AG, however, supported the impugned order. He referred the detention order (supra) to demonstrate that the detaining authority had arrived at a satisfaction that the detenue has no respect for law. Since, he believes in breaking the law repeatedly and terrorizing the people of the area, therefore, the normal law was not sufficient to deal with him. 7. Heard, perused the detention record and considered. 8. It has already been held in various judgments by the Apex Court that in case the detenue has not been provided all the relevant material on which the subjective satisfaction is stemmed, same renders the order of detention bad in law. It can be reasonably inferred that the detenue has not been in a position to make an effective representation, which is statutory and constitutional right of said detenue, due to this lapse of detaining authority and so it renders the impugned order bad. 9. In Smt. Icchu Devi Choraria Vs. Union of India & Ors. It can be reasonably inferred that the detenue has not been in a position to make an effective representation, which is statutory and constitutional right of said detenue, due to this lapse of detaining authority and so it renders the impugned order bad. 9. In Smt. Icchu Devi Choraria Vs. Union of India & Ors. ( AIR 1980 SC 1983 ), the Apex Court has observed as:- 'The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.' 'This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.' 10. It is also notable that normal law in the instant case had to be assumed to be sufficient to disable the detenue to indulge in any such activity which may have been in the estimation of the detaining authority to be treated prejudicial to the security of the State. 11. In view of the facts of the instant case and the law laid down by the Hon'ble Apex Court as referred above, the order of detention, impugned herein, does not sustain and is required to be quashed. 12. Accordingly, the impugned detention order bearing No. 39/DMP/PSA/21 dated 18.10.2021, is hereby quashed. 13. As a sequel, personal liberty of the detenue namely Shah-e-Jahan Pandith S/O Gh. Rasool Pandith R/O Karimabad Pulwama, is ordered to be restored forthwith, provided he is not warranted in other case(s). 14. Disposed of, accordingly.