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2023 DIGILAW 287 (JK)

Pankaj Singh v. UT of J&K

2023-07-17

SINDHU SHARMA

body2023
JUDGMENT : Sindhu Sharma, J. 1. The petitioner has challenged Order No. 12 PSA of 2022, dated 09.09.2022, passed by the District Magistrate, Jammu, whereby the petitioner has been detained under the Jammu & Kashmir Public Safety Act, 1978, to prevent him from acting in any manner prejudicial to the maintenance of public order. This order of detention is being assailed by the petitioner through his wife Surbhi Rajput. 2. The detention order has been questioned by the detenu on the grounds that; (i) the same has been passed without any application of mind as there was no cogent and compelling reason for passing the order of detention; (ii) the grounds of detention are replica of the dossier as there is no application of mind by the Detaining Authority; (iii) the detenu has not been informed of his right to make a representation against this detention; (iv) the grounds of detention are vague, uncertain, untrue and ambiguous in all material particulars, therefore, the detention is unsustainable; (v) all the material relied upon by the Detaining Authority has not been provided to the detenu and this has resulted in an infraction of constitutional and statutory safeguards as provided to him under the constitution as well as Public Safety Act. 3. The respondents have filed their counter affidavit as well as produced the detention record. The respondents submit that all the statutory requirements and constitutional guarantees as provided to the detenu have been fulfilled and complied with. It is also submitted that in compliance to the District Magistrate's order, the warrant was executed by the Executing Officer-PSI Maroof Ahmed No. PID EXJ-No. (196260) of Police Station, Miran Sahib, who has read over and explained the warrant and grounds of detention to the detenu in the language, he understands. The detenu was also informed of his right to make a representation to the Detaining Authority as well as the Government against his detention. The detenu has been provided all the material relied upon by the Detaining Authority along with translated copies of the same were provided to him. He, however, has not made any representation against his detention. 4. Heard learned counsel for the parties and perused the record. 5. The petitioner has placed on record a copy of the representation against his detention made to the Secretary, Home Department on 10.11.2022. He, however, has not made any representation against his detention. 4. Heard learned counsel for the parties and perused the record. 5. The petitioner has placed on record a copy of the representation against his detention made to the Secretary, Home Department on 10.11.2022. The contention of the petitioner is that the representation made by him has not been considered till date. It is apparent from the reply as well as record that the representation made by the petitioner has neither been considered nor disposed of. In view of the clear averments supported by documentary evidence and in the absence of rebuttal by the detaining authority, this Court is left with no other option but to accept the contention of detenue that his representation has not been considered by the detaining authority. 6. Article 22(5) of the Constitution of India provides specific protections to under trials and detainees in India. Article 22(5) of the Constitution of India reads as under:- "When any person is detained in pursuant 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 afford him an earliest opportunity of making a representation against the order, therefore, it casts a duty upon the Detaining Authority to communicate to the detenu the grounds on which the order is made and a corresponding right arising in him of making such representation against his detention." The Hon'ble Supreme Court has time and again held that the representation submitted by the detenue must be considered and disposed of at the earliest. 7. In 'Sarabjeet Singh Mokha v. District Magistrate, Jabalpur & Ors.', 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 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 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." 8. The right to personal liberty is guaranteed and in order to curtail the freedom, there must be a cogent cause and strict adherence to the safeguards prescribed. The Detaining Authority has, thus, not considered the representation of the detenu till date and thus, there is violation of the valuable right of the detenu under Article 22(5) of the Constitution. 9. It is apparent from the grounds of detention that on the date of passing of the order of detention, the detenu was in judicial custody. The respondents, thus, had to indicate compelling reasons or circumstances for his detention but the respondents have failed to give any such compelling circumstances for his detention. Though, the detaining authority has shown awareness with regard to the detenu being in judicial custody of the State but has failed to indicate any compelling reasons or circumstances necessitating issuance of the impugned order of detention. 10. This apart, the detenu was earlier detained vide detention Order No. 16 of 2016, dated 02.12.2016. This order of detention was challenged by the detenu and quashed in HCP No. 14/2017, dated 28.11.2017. The respondents have relied on the same grounds while detaining the petitioner vide order dated 09.09.2022. It is well settled that if the detention order is revoked or quashed, the detenu cannot rely on the same grounds in part also. 11. In 'Chhagan Bhagwan Kahar v. N.L. Kalna & Ors.', AIR 1989 SC 1234 , it was held as under:- 12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. In 'Chhagan Bhagwan Kahar v. N.L. Kalna & Ors.', AIR 1989 SC 1234 , it was held as under:- 12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even alongwith the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order." 12. The non-adherence to these safeguards has vitiated the order of detention. The impugned order of detention for the aforementioned reasons is unsustainable in the eyes of law. 13. In view of the aforesaid discussion and without adverting to the other grounds raised in this petition, this petition is allowed. Accordingly, detention Order No. 12 PSA of 2022, dated 09.09.2022, is quashed. The detenu is directed to be released from custody forthwith, provided he is not required in any other case. 14. Detention record be returned to learned counsel for the respondents by the Registry forthwith.