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2022 DIGILAW 68 (JK)

Babbar Khan v. Union Territory of J&K

2022-02-25

PANKAJ MITHAL, SINDHU SHARMA

body2022
JUDGMENT : Sharma, J. 1. The present Appeal has been preferred against the judgment dated 03.12.2021 passed in WP(Crl) No. 29/2021 whereby the Habeas Corpus Petition of the appellant herein has been dismissed. 2. The appellant was detained by the District Magistrate, Jammu vide Order No. 05 of 2021 dated 05.05.2021 under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. 3. This order of detention was assailed by the appellant in a petition in the nature of Habeas Corpus amongst other on the grounds that: (i) The appellant was already in custody in FIR No. 91 of 2021, at the time of passing of the order of detention and, therefore, it was necessary for the detaining authority to show awareness to this fact and to indicate compelling circumstances for passing the impugned order of detention. (ii) The detaining authority has not considered the representation of the detenu seeking revocation of his detention. (iii) The detenu was not provided the relevant material relied upon by the detaining authority to derive its subjective satisfaction with regard to the necessity of keeping the detenu in preventive detention. (iv) The grounds of detention are verbatim copy of the dossier provided by the police authorities, as such, the detaining authority has not applied its mind to arrive at subjective satisfaction while passing the order of detention. (v) The order of detention suffers from non-application of mind and does not disclose any compelling circumstances requiring preventive detention of the appellant 4. The respondents justified the detention of the detenu on the basis of his involvement in many criminal cases and on the ground of his activities as narrated in the dossier of the Senior Superintendent of Police, Jammu. The respondents submitted that the detenu is a hardcore criminal who has created a terror in the area and his activities have caused harm to the peace and tranquility of the area resulting in constant threat to the maintenance of public order. Since the substantive law of the land was not sufficient in deterring the appellant from indulging into criminal acts as he was terrorizing people and community, therefore, the Detaining Authority was compelled by the activities of the appellant to pass the order of detention. 5. Since the substantive law of the land was not sufficient in deterring the appellant from indulging into criminal acts as he was terrorizing people and community, therefore, the Detaining Authority was compelled by the activities of the appellant to pass the order of detention. 5. The writ court held that there was no legal procedural infirmity and while passing the order of detention it was also held that detenu was supplied grounds of detention was sufficient to arrive at the satisfaction that it was necessary to put the detenu in preventive detention to restrain him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention are definite, proximate and free from any ambiguity and all the constitutional safeguards, regarding furnishing of ground of detention, providing him all requisite material and informing him of his right of representation had been followed. The detenu had been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order, in exercise of its powers under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. 6. The appellant is aggrieved of the order of the writ court on the ground that the writ Court has erred in upholding the detention of the detenu. It is urged that the Detaining Authority was well aware of the fact that the detenu was already in custody at the time of issuance of order of detention for committing a substantive offence in FIR No. 91/2021, thus, it was necessary for the Detaining Authority to disclose compelling reasons for putting the detenu who was already in custody under preventive detention. 7. Perusal of the detention order and the grounds of detention and record reveals that detaining authority has not shown any awareness to the fact that the detune was in custody and therefore, there is total non-application of the mind by the Detaining Authority. The detention of the appellant who was in judicial custody was not justified in view of law laid down in Surya Prakash Sharma vs. State of U.P. and others,’ reported in 1994 Supp (3)SCC 195, wherein the Hon’ble Supreme Court has held as under:- “5. The detention of the appellant who was in judicial custody was not justified in view of law laid down in Surya Prakash Sharma vs. State of U.P. and others,’ reported in 1994 Supp (3)SCC 195, wherein the Hon’ble Supreme Court has held as under:- “5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, [1964] 4 SCR 921. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, AIR (1990) SC 1196 wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) answered the question in the following words: “The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment: made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail 'he may again indulge in serious offences causing threat to public order", (emphasis supplied), To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. 7. On the conclusions as above we quash the order of detention.” 8. In ‘Jai Singh and others V. State of J&K,’ (1985) 1 SCC 561 , the Apex Court has observed as under: “There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases.” 9. In the instant case, there is no iota of material which may show or establish that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority has not recorded that the detenu is likely to be enlarged on bail or is likely to be released and on being released is likely to indulge in the activities which may be prejudicial to the maintenance of public order. 10. Similarly in ‘M. Ahamedkutty V. Union of India and another,’ (1990) 2 SCC 1 , it has been held that the appellant is, therefore, correct in his submission that order of detention is without any application of mind and vitiates the order of detention issued by the detention authority. “21. 10. Similarly in ‘M. Ahamedkutty V. Union of India and another,’ (1990) 2 SCC 1 , it has been held that the appellant is, therefore, correct in his submission that order of detention is without any application of mind and vitiates the order of detention issued by the detention authority. “21. It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority, otherwise there would be non-application of mind and detention order vitiated thereby. 11. It was next contended that the appellant made a representation to the Detaining Authority as well as the Government but the same was not considered. Article 22(5) of the Constitution of India provides that specific protections to under trials and detainees in India. Article 22(5) of the Constitution of India reads as under: “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.” 12. In ‘Jayanarayan Sukul V. State of West Bengal’, (1970) 1 SCC 219 , the Hon’ble Apex Court has held that: “20. Broadly stated, four principles are to be followed in regard to the representation of detenu. First, the appropriate authority is bound to give detenu an opportunity to make a representation and to consider it as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. Though no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, it has to be remembered that the Government has to be vigilant in the governance of the citizens. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet will and convenience. The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet will and convenience. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will, send the case along with the detenu’s representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. 21. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The superintendent who made the enquiry did not affirm an affidavit. The state has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.” 13. In ‘Sarabjeet Singh Mokha V. District Magistrate, Jabalpur and others,’ 2021 SCC Online SC 1019, it has been held that: “22. ……………….Article 22(5) reflects a keen awareness of the framers of the constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandates an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be dispose of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.” 14. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.” 14. The respondents did not consider the representation of the appellant and there has been no explanation for the same in their counter affidavit. This has vitiated the detention order itself, therefore, there is no need to advert to the other ground raised in this appeal. 15. For the aforementioned reasons, we accept the appeal and set aside the order of writ court dated 03.12.2021 and quash the impugned order of detention bearing No. 05 of 2021 dated 05.05.2021 under J&K, Public Safety Act, 1978. The appellant is directed to release from preventive custody forthwith, if not required in connection with any other case. 16. Applications connected, if any, shall also be disposed of. 17. Record be returned to learned AAG forthwith.