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2023 DIGILAW 664 (JK)

Mohd. Azam Shah v. Union Territory of J&K

2023-10-21

SINDHU SHARMA

body2023
JUDGMENT : 1. This petition has been preferred by Mohd. Azam Shah, the detenu, through his wife Massarat Begum seeking quashing of order of detention No.DMR/INDEX/11 of 2023 dated 17.05.2023 passed by the District Magistrate, Rajouri, whereby the detenu has been detained under section 8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. 2. The petitioner submits that the detenu is working as Class-IV employee in Government Hospital Nowshera and remained as a law abiding citizen fully and completely devoted to his duties and there is a family dispute between the detenu and his step brothers regarding partition of the immoveable ancestral property which led to lodging of number of false FIRs in Police Station Rajouri. These complaints were lodged from both sides and equal number of FIRs were registered against the brothers of the detenu and out of these FIRs almost all of them were closed as not proved but in two FIRs, charge sheet was presented. The respondents arbitrarily passed the order of detention No.DMR/INDEX/11 of 2023 dated 17.05.2023 and the petitioner was taken into custody without informing the family members. 3. The impugned detention order has been assailed by the detenu on the grounds that; (i) all the material relied upon by the detaining authority has not been supplied to the detenu while passing the order of detention, thus, has prevented him from making an effective representation to the Government or Detaining Authority; (ii) the order of detention has not been provided to the detenu in the language he understands and this has resulted in serious consequences; (iii) there is total non-application of mind by the Detaining Authority as the Detaining Authority has not considered the fact that almost in all the FIRs, investigation stands closed; (iv) the detention of the detenu is on the basis of old FIR which has no proximate link or connection with the impugned order of detention and (v) the Detaining Authority has not formulated any opinion to detain the detenu and the grounds of detention are verbatim copy of the dossier supplied by the Senior Superintendent of Police, Rajouri. 4. The respondents have filed the counter affidavit as well as produced the detention record. 4. The respondents have filed the counter affidavit as well as produced the detention record. They submit that the acts of the detenu were prejudicial to the maintenance of public order and safety/security of lives and properties of the citizens. The detenu was informed that he can make a representation to the Government and was supplied all the material relied upon by the Detaining Authority while passing the detention order and the same has been passed after considering all the material put forth by the Senior Superintendent of Police, Rajouri. 5. It is also submitted that in compliance to the District Magistrate’s order, the warrant was, accordingly, executed by the Executing Officer-SI Ab. Qayoom of Police Station, Rajouri, who has read over and explained the warrant and grounds of detention to the detenu in the language, he understands and 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. 6. Heard learned counsel for the parties and perused the record. 7. While perusing the detention record, first ground raised by the detenu appears to be valid as the detenu has not been provided all the material relied upon by the Detaining Authority in order to enable him to make an effective representation. 8. One of the most precious right as guaranteed under the Constitution of India is personal liberty. No one can be denied of his right to life and personal liberty except in accordance with procedure established by law. Though, this personal liberty may be curtailed when person faces a criminal charge or is convicted of an offence sentenced to imprisonment. The Constitution, however, by adding Article 22(5) have incorporated detention of a person without any formal charge and trial and without such person being held guilty of an offence and sentenced by a competent court. This is to keep the society safe from such activities that are likely to deprive large people of their right to life and personal liberty. The justification of such detention is suspicion or reasonability which requires action to be taken to prevent apprehended objectionable activities, Article 22(5) of the Constitution provides for the same. 9. This is to keep the society safe from such activities that are likely to deprive large people of their right to life and personal liberty. The justification of such detention is suspicion or reasonability which requires action to be taken to prevent apprehended objectionable activities, Article 22(5) of the Constitution provides for the same. 9. 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:- “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.” 10. In Ram Krishan Bhardwaj vs The State Of Delhi And Others reported as AIR 1953 SC 318 while interpreting Article-22(5) of the Constitution of India, it was observed that furnishing of grounds of detention means material sufficient to enable the detenu to make an effective representation. Failure by the Detaining Authority to supply material relied upon at the time of passing the detention order renders the detention order unsustainable in law. 11. Reliance is also placed on Thahira Haris etc. etc. Vs. Government of Karnataka and others, reported as AIR 2009 Supreme Court 2184, has held as under: “27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.” 12. Thus, the Detaining Authority is required to furnish to the detenu the grounds of detention, all the documents referred in the grounds of detention and all the material which the Detaining Authority has considered while framing its subjective satisfaction. Police report of the dossier is also to be provided. Record reveals that all the material has not been provided to the detenu. The execution report reveals that only one copy of the warrant of PSA has been received. Thus, it is also clear from the record that the dossier as well as other documents have not been provided to the detenu in order to enable him to make an effective representation to the Government or Detaining Authority, as such, non-supply of material violates the rights of the detenu under Article 22(5) of the Constitution of India and would make the order unsustainable in the eye of law. Similar view has been held by the Hon’ble Apex Court, in Ibrahim Ahmad Batti v. State of Gujarat, reported as (1982) 3 SCC 440 . 13. It is next argued by learned counsel for the detenu that all the FIRs are between two brothers i.e., between him and his step brothers and there is no element of public order involved, is also not without any basis. It is next argued by the counsel for the detenu that the criminal activities of the detenu are sufficient to be dealt with under ordinary law of the land, the detention order becomes unsustainable. 14. It is well settled that if the remedies to deal with the detention are sufficient under the ordinary laws of the land taking recourse to preventive detention is contrary to constitutional guarantee and detention becomes invalid and legally unsustainable. 15. In V. Shantha vs. State of Telangana & ors. 14. It is well settled that if the remedies to deal with the detention are sufficient under the ordinary laws of the land taking recourse to preventive detention is contrary to constitutional guarantee and detention becomes invalid and legally unsustainable. 15. In V. Shantha vs. State of Telangana & ors. reported as AIR 2017 SC 2625 , the Hon'ble Supreme Court while quashing the detention order and observing that if the remedies to deal with the detenu are sufficient under the ordinary laws of the land, taking recourse to the provision of preventive detention is contrary to the Constitutional guarantees whereby the detention order becomes invalid and legally unsustainable, in para 12 held as under: “12. The detenu was the owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. FIRs were lodged against the detenu and others under sections 420, 120-B, 34, IPC and Sections 19, 21 of Seeds Act, 1966. It was alleged that the chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of land for the offence alleged.” 16. The grounds of detention reveal that the detenu creates tension for his neighbours and is also habitual of quarrelling with one and other, in this regard, number of FIRs registered against him but he has not desisted from same, thus, it was necessary to detain him. The offences as alleged in the FIRs are not of the nature that ordinary criminal law cannot be dealt and the fact that he was admitted to bail in these FIRs is no ground to detain him under preventive law and, thus, impugned detention of the detenu is unsustainable under law. 17. Reliance in this regard is placed on the judgment of Hon’ble Apex Court in Vijay Narain Singh Vs. State of Bihar & ors. reported as (1984) 3 SCC 14 , wherein it has been held as under:- “32 ……... 17. Reliance in this regard is placed on the judgment of Hon’ble Apex Court in Vijay Narain Singh Vs. State of Bihar & ors. reported as (1984) 3 SCC 14 , wherein it has been held as under:- “32 ……... It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” 18. In the present case, the ordinary law of land was sufficient to deal with the situation. 19. The grounds of detention also reveal that the allegations against the detenu in the grounds of detention with regard to offences also do not fall under the realm of public order as defined under Section 8(3) of the Act as there is no allegation against the detenu regarding his activities effecting public at large. The allegations may amount to law and order issue but he cannot be held to have disturbed the public order. 20. In view of the aforesaid, this petition is allowed. Accordingly, order of detention No.DMR/INDEX/11 of 2023 dated 17.05.2023 passed by the District Magistrate, Rajouri, is quashed. The detenu-Mohd. Azam Shah S/o Sh. Nisar Hussain R/o Village Fatehpur, Tehsil Rajouri, District Rajouri, is directed to be released from the custody forthwith if he is not otherwise required in any other case. 21. Detention record be handed over to learned counsel for the respondents by the Registry forthwith.