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2023 DIGILAW 510 (JK)

Shabnam Begum Th. Jaffer Hussain v. UT of J&K

2023-09-14

RAJNESH OSWAL

body2023
JUDGMENT : 1. The present petition has been filed by the petitioner for quashing the order of detention bearing No. 01/DM/K/PSA of 2022 dated 07.11.2022 passed by the respondent No. 2, whereby the petitioner has been detained under the J&K Public Safety Act, 1978 (for short ‘PSA’). 2. It is stated that the petitioner has been falsely implicated in FIR No. 232/2022 dated 27.09.2022 for commission of offences under Section 363 and 364 IPC registered with Police Station, Kishtwar. The petitioner was granted bail by the court of learned Principal Sessions Judge, Kishtwar vide order dated 31.10.2022 and after her release on bail, was again arrested on 07.11.2022 under the PSA. It is also averred that the petitioner is a widow and mother of 12 years old son. The petitioner has impugned the order of detention on the following grounds: (i) That there is only one FIR bearing No. 232/2022 registered with Police Station, Kishtwar against the petitioner and when the petitioner was granted interim bail vide order dated 31.10.2022, the respondents, instead of contesting the said bail application, issued the order of detention illegally. (ii) That the petitioner submitted the representation dated 18.11.2022 to the respondent No.1, with copy to the respondent No.2 but no action was taken by them. (iii) That the material relied upon by the respondent No. 2, i.e. the dossier and other documents, has not been provided to the petitioner and also the contents of grounds of detention have not been explained to the petitioner. (iv) That the order of detention has been passed without application of mind and it is merely reproduction of the dossier, which contains distorted and fallacious allegations leveled against the petitioner. (v) That the respondent No. 2 has not recorded any reason for detaining the petitioner despite the fact that the petitioner was granted bail. 3. The respondent No. 2 i.e. the detaining authority has filed the response. In its response, the respondent No. 2 has stated that the respondent No. 3 vide communication dated 31.10.2022 submitted a dossier along with the relevant material in respect of involvement of the petitioner in criminal and anti-social activities in District Kishtwar. On receipt of the dossier, the respondent No. 2 examined the said record and after due application of mind, issued the detention order under Section 8 of the PSA. On receipt of the dossier, the respondent No. 2 examined the said record and after due application of mind, issued the detention order under Section 8 of the PSA. The petitioner was informed about the order as well as the grounds of detention and the petitioner was also informed that she can approach the Advisory board either herself or through her advocate against the order of detention. Besides, she was also informed that she can make representation against the order of detention to the respondent No. 2 and also to the Government. It is further averred that the opinion of the Advisory Board was also sought and the Advisory Board in its opinion dated 30.11.2022 also opined in favour of the detention of the petitioner. The Financial Commissioner (ACS) Home also confirmed and approved the order of detention vide order dated 14.11.2022. The Home Department has issued the order dated 06.12.2022 for detaining the petitioner for the period of three months at the first instance. The detention order was executed on 08.11.2022. It is further stated that the petitioner was found to be involved in commission of offences under Sections 363 and 364 IPC which led to the registration of FIR No. 232/2022 dated 27.09.2022 and Kishtwar town is an educational centre for the residents of far-flung areas and most of the families have kept their wards at Kishtwar in rented accommodations. The petitioner, by her act, created a sense of insecurity amongst those families. It is further stated that in the execution report it is mentioned that the contents of the order of detention and grounds of detentions were read over to the detenue in English and Urdu and she signed the execution report dated 08.11.2022. Respondent No. 3 has also filed response in a similar manner as that of respondent No. 2 and it is stated that the petitioner was found involved in kidnapping of a minor child of 5-6 months of age. This act of the petitioner has created a sense of insecurity in the whole area. 4. Learned counsel for the petitioner submits that the documents relied upon by the detaining authority have not been supplied to the petitioner and also the grounds of detention were not read over to the petitioner in the language fully understandable to her. This act of the petitioner has created a sense of insecurity in the whole area. 4. Learned counsel for the petitioner submits that the documents relied upon by the detaining authority have not been supplied to the petitioner and also the grounds of detention were not read over to the petitioner in the language fully understandable to her. He further argued that no reason has been assigned by the detaining authority for detaining the petitioner, more particularly when the petitioner was granted bail. He also urged that the representation submitted by the petitioner was not decided at all. 5. Ms. Monika Kohli, learned senior AAG appearing on behalf of the respondents argued that all the statutory as well as constitutional safeguards were complied with at the time of issuance and execution of the order of detention. She further submits that the act of kidnapping of a child of five to six months of age from the District Hospital Kishtwar has created a sense of insecurity amongst the residents of Kishtwar, as such, the detaining authority has rightly passed the order of detention. 6. Heard and perused the record. 7. A perusal of the record reveals that the allegations against the petitioner are that on 27.09.2022 one Afreen Ahmed had gone to the OPD of District Hospital Kishtwar for medical checkup and had kept her minor son of five to six months of age on the bed in the OPD. After she came back, she found her child was missing. FIR was registered and after examining the CCTV footage of the District Hospital Kishtwar it was found that one lady carrying the child stepped out of District Hospital Complex. 15 teams of District Police Kishtwar were constituted and put on job for tracing the missing child. When CCTV footage of Library adjacent to the Veterinary Hospital Chowk Kishtwar was checked, it was found that suspect lady went to the house of a lady, who was identified as Nusarat Begum. On enquiry, Nusarat Begum disclosed the name of the suspect lady as Shabnam Begum. Subsequently, child was recovered from her. A perusal of the detention record reveals that the order of detention was executed on 08.11.2022 by PSI Sakshi Sharma and copy of detention order, a letter addressed to the petitioner, grounds of detention and other documents (9 leaves) were handed over to the petitioner against proper receipt. Subsequently, child was recovered from her. A perusal of the detention record reveals that the order of detention was executed on 08.11.2022 by PSI Sakshi Sharma and copy of detention order, a letter addressed to the petitioner, grounds of detention and other documents (9 leaves) were handed over to the petitioner against proper receipt. The petitioner has signed the receipt in respect of receipt of documents, as such, there is no force in the contention of the petitioner that the documents relied upon by the detaining authority were not provided to the petitioner. 8. Further, receipt of grounds of detention also reveals that the grounds of detention were read over to the detenue in English and were explained to her in Hindi, Urdu, Dogri and Kashmiri languages, which she fully understood. Thus, the contention of the petitioner that the grounds of detention were not read over to her does not sustain. 9. It was also contended by the petitioner that instead of contesting the bail application, the detention order was issued by the respondent No. 2. A perusal of the order dated 31.10.2022 passed by the Principal Sessions Judge, Kishtwar reveals that the petitioner was enlarged on interim bail till 16.11.2022, as the prosecution could not satisfy the learned Principal Sessions Judge for rejection of bail resulting into grant of interim bail to the petitioner. 10. The record produced by the respondents depicts that in the communication dated 07.11.2022 addressed to the petitioner, the grounds of detention reflected as ‘Annexure-A’ was provided to the petitioner. The grounds of detention comprises of 1 leaf and the perusal of the same reveals that in the grounds of detention, it is nowhere whispered that the petitioner has been enlarged on bail, however, there is one communication addressed to the Financial Commissioner dated 07.11.2022 whereby a request for confirmation of the detention order was made by the respondent No. 2 and in the said communication it was mentioned by the respondent No. 2 that the petitioner has been granted bail and the release of the subject is against the public order. It was incumbent upon the respondent No. 2 to have mentioned in the grounds of detention that the petitioner was enlarged on bail. It was incumbent upon the respondent No. 2 to have mentioned in the grounds of detention that the petitioner was enlarged on bail. Was it a remiss or not, on part of the respondent No. 2 not to mention about grant of bail in the grounds of detention, which was mentioned by him in his communication to the Financial Commissioner dated 07.11.2022, the benefit of the same must go to the petitioner. The personal liberty of the petitioner cannot be deprived in an arbitrary and reckless manner. It clearly reflects the non- application of mind on part of the respondent No. 2. 11. Further, the petitioner has annexed the copy of the representation submitted to the respondent No. 1 along with the postal receipt dated 19.11.2022. The respondent No. 1 has not chosen to respond to the said contention of the petitioner. In absence of any response by the respondent No. 1 and taking into consideration the postal receipt dated 19.11.2022 in respect of submission of the representation by the petitioner, it can safely be inferred that the respondent No. 1 has not decided the representation submitted by the petitioner. This too renders order of detention bad in the eyes of law. Reliance is placed upon decision of Hon’ble the Supreme Court in the case titled “Tara Chand Vs. State of Rajasthan and others” reported as 1980 (2) SCC 321 and “Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and others” reported as (1986) 1 SCC 650 , in which the Supreme Court has held that if there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void. Further in “Rajammal Vs. State of Tamil Nadu and others”, reported as 1999 (1) SCC 417 , the Supreme Court has held as under: “It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the works “as soon as may be” in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.” In K. M. Abdulla Kunhi Vs. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the works “as soon as may be” in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.” In K. M. Abdulla Kunhi Vs. Union of India reported as (1991) 1 SCC 476 , Hon’ble the Supreme Court has held as under: “…. It is settled law that there should not be supine indifference, slackness of callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” In Ummu Sabeena Vs. State of Kerala reported as (2011) 10 SCC 781 , the Supreme Court has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression ‘as soon as may be’, in Article 22(5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay. 12. In view of what has been discussed above, this Court is of the considered view that the impugned order of detention bearing No. 01/DM/K/PSA of 2022 dated 07.11.2022 passed by the respondent No. 2, whereby the petitioner has been detained under the J&K Public Safety Act, 1978 is required to be quashed. 13. Ordered accordingly. 14. The petitioner be released forthwith, if she is not required in any other case. Record be returned to the learned counsel appearing for the respondents.