Jammu & Kashmir High Court/ vs Ut Of Jammu And Kashmir And Others on 11 April, 2023Author:Vinod Chatterji KoulBench:Vinod Chatterji KoulHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                              AT JAMMU\n\n                                               WP(Crl) No. 54/2022\n\n                                               Reserved on 05.04.2023.\n                                               Pronounced on 11 .04.2023.\n\n\nShah Nawaz\n                                                                     .... /Petitioner(s)\n\n                    Through :- Mr. Waheed Chowdhary Advocate.\n\n          V/s\n\nUT of Jammu and Kashmir and others                                   ....Respondent(s)\n\n\n                    Through :-       Mrs. Monika Kohli Sr. AAG\n\nCoram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE\n\n                                       ORDER1         The Order No.24/PSA of 2022 dated 03.10.2022, issued by District\n\nMagistrate, Ramban placing detenu, namely, Shah Nawaz                S/o Ghulam\n\nMohammad Tragwal R/o Lahni Gundi Dharam, Tehsil Goold District Ramban\n\nunder preventive detention in terms of J&K Public Safety Act, so as to prevent\n\nhim from acting in any manner prejudicial to the maintenance of public order\n\nand directing his lodgement in Central Jail Kot Bhalwal, Jammu, has been\n\nchallenged, in this writ petition.2. The order of detention though challenged on various grounds, yet learned\n\ncounsel for the petitioner has vehemently urged that the material relied upon by\n\nthe detaining authority while passing impugned detention order has not been\n\nprovided to detenu to enable him to make an effective and meaningful\n\nrepresentation.3. Respondents, in their objections, have submitted that there is no illegality in\n\nthe order of detention, as it was necessary to place the detenu under preventive\n\ndetention. The detenu has been indulging in activities which are prejudicial to\n\nthe maintenance of public order. The grounds taken by the detenu are said to be\n\nlegally misconceived, untenable and without any merit. It is further contended\n\nthat the grounds of detention were read over to the detenu in English and\n\nexplained to him in Urdu language which he understood fully and that his\n\nsignatures were also obtained on the execution report of detention.4.        I have heard learned counsel for the parties and considered the matter.5.        The main ground taken by the detenu, in this writ petition, is that he\n\nwas not in a position to make an effective and meaningful representation either\n\nto the detaining authority or to the Government against his detention because he\n\nwas not provided the material by the detaining authority, thus, there is violation\n\nof provisions ofArticle 22 (5)of the Constitution of India and in absence of such\n\nmaterial he was prevented from making an effective representation.6.        To evaluate the submission vis-à-vis non-furnishing of material to\n\ndetenu that has been relied upon by detaining authority while issuing impugned\n\ndetention order, it would be appropriate to go through the detention record,\n\nproduced by learned counsel for respondents. Detention record contains,\n\namongst others, Execution Report, which reveals that only four leaves have been\n\nfurnished to detenu. It does not show or suggest that detenu has been furnished\n\ncopy of dossier and other relevant material relied upon by detaining authority\n\nwhile issuing impugned detention order.7.        Bare    reading    of   impugned     detention    order     reveals   that\n\nSr. Superintendent of Police, Ramban vide his letter dated 30.09.2022, produced\n\ndossier, material record, and other connected documents in respect of detenu and\n it was only after perusal thereof that impugned detention order has been issued\n\nby detaining authority. Grounds of detention attribute various incidents and\n\ninstances to detenu and mention that detenu has been instigating/provoking the\n\nmasses particularly youths of Gool and its adjoining area against the\n\nGovernment. The material, relied upon by detaining authority, thus, assumes\n\nsignificance in the facts and circumstances of the case. It needs no emphasis, that\n\nthe detenu cannot be expected to make a meaningful exercise of his\n\nConstitutional and Statutory rights guaranteed underArticle 22(5)of the\n\nConstitution of India and Section 13 of the J&K Public Safety Act, 1978, unless\n\nand until the material on which the detention order is based, is supplied to the\n\ndetenu. It is only after the detenu has all the said material available he can make\n\nan effort to convince the detaining authority and thereafter the Government that\n\ntheir apprehensions concerning the activities of detenu are baseless and\n\nmisplaced. If detenu is not supplied the material, on which detention order is\n\nbased, he will not be in a position to make an effective representation against his\n\ndetention order. Failure on the part of detaining authority to supply the material\n\nrelied at the time of making the detention order to detenu, renders detention\n\norder illegal and unsustainable. While saying so, I draw the support from the law\n\nlaid down in Thahira Haris Etc. Etc.v. Government of Karnataka, AIR 2009\n\nSC 2184;Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy\n\nDass v. District Magistrate, AIR, 1982 SC 1315;Sofia Gulam Mohd Bham v.\n\nState of Maharashtra and othersAIR 1999 SC 3051; andSyed Aasiya\n\nIndrabi v. State of J&K & others, 2009 (I) S.L.J 219.8.        In the present case, it is submission of respondents that there are very\n\nserious allegations against detenu as he has been instigating and provoking the\n\ngeneral masses against the Government and that he tried to create communal\n tension for which he usually remained busy in instigating the youths to vitiate\n\nthe peaceful atmosphere of Gool. In this regard, taking recourse to preventive\n\ndetention laws would not be warranted. Detention cannot be made a substitute\n\nfor ordinary law and absolve investigating authorities of their normal functions\n\nof investigating crimes, which detenu may have committed. After all, preventive\n\ndetention cannot be used as an instrument to keep a person in perpetual custody\n\nwithout trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011\n\nSCW 2262, while emphasizing need to adhere to procedural safeguards,\n\nobserved:"It must be remembered that in case of preventive detention no\n                offence is proved and the justification of such detention case is\n                suspicion or reasonable probability, and there is no conviction\n                which can only be warranted by legal evidence. Preventive\n                detention is often described as "jurisdiction of suspicion", The\n                Detaining Authority passes the order of detention on subjective\n                satisfaction. Since Clause (3) ofArticle 22specifically excludes\n                the applicability of Clauses (1) and (2), the detenue is not entitled\n                to a lawyer or the right to be produced before a Magistrate within\n                24 hours of arrest. To prevent misuse of this potentially\n                dangerous power the law of preventive detention has to be strictly\n                construed and meticulous compliance with the procedural\n                safeguards, however, technical, is, in our opinion, mandatory and\n                vital."9.          No doubt the offences alleged to have been committed by detenu are\n\nsuch as to attract punishment under the prevailing laws but that has to be done\n\nunder the said prevalent laws and taking recourse to preventive detention laws\n\nwould not be warranted. Preventive detention involves detaining of a person\n\nwithout trial in order to prevent him from committing certain types of offences.\n\nBut such detention cannot be made a substitute for the ordinary law and absolve\n\nthe investigating authorities of their normal functions of investigating crimes\n\nwhich the detenu may have committed. After all, preventive detention cannot be\n\nused as an instrument to keep a person in perpetual custody without trial. Regard\n in this respect is had to the judgements rendered in the case of Rekha (supra) as\n\nalso in Sama Aruna v. State of Telengana AIR 2017 SC 2662.11.       Based on the above discussion, the petition is allowed and Detention\n\nOrder No.24/PSA of 2022 dated 03.10.2022, issued by District Magistrate,\n\nRamban      against the above-named detenu,, is quashed. Consequently,\n\nrespondents are directed to set the detenu at liberty forthwith provided he is not\n\nrequired in any other case.Detention record be returned to the learned Sr. AAG.(Vinod Chatterji Koul)\n                                                Judge\n\nJammu:11. 04.2023.Sanjeev\n\n                  Whether order is reportable:Yes/No