Sr. No. 16

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU 

WP (Crl) No. 45/2021 

CrlM Nos. 2307 & 1302/2021 

Reserved on: 07.03.2022 

Pronounced on: 23.03.2022 

Tariq Ahmed …..Petitioner(s) Through :- Mr. Muzaffar Iqbal Khan, Advocate 

v/s 

Union Territory of J & K & Ors …..Respondent(s) Through :- Mr. Eishaan Dadhichi, GA 

CORAM: HON‟BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE  

JUDGMENT 

23.03.2022 

1. Respondent No.2 namely District Magistrate, Ramban (hereinafter called  ‘Detaining Authority’) in exercise of powers under Section 8 of the  Jammu & Kashmir Public Safety Act, 1978 (for short, „Act of 1978‟),  passed the detention Order No. DMR/PSA/2021/1667-72 dated  09.07.2021 (for short ‘impugned order’), in terms whereof the detenue  namely Tariq Ahmed S/O Abdul Rehman R/O Hollan Tehsil Banihal  District Ramban has been detained.  

2. The impugned detention order has been challenged through the medium  of the instant petition, being in breach of the provisions of Article 22(5) of  the Constitution of India read with Section 13 of the J&K Public Safety  Act, 1978. 

3. It is being pleaded in the petition that the detaining authority-respondent  No.2 has not attributed any specific allegation against the detenue.  Furthermore, it is stated that the detenue has been incapacitated in filing a  

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representation as the grounds of detention are not in a language which  could be understood by the detenue. It is also being stated that the detenue  is not an English literate person who is just 8thpass and understands only Urdu language but the order of detention is in English and it is not  possible for him to understand such a hyper technical language. It is also  the submission of learned counsel for the detenue that the order of  detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article  22(5) of the Constitution of India. 

4. Respondents in their counter affidavit have stated that the detenue was  ordered to be detained for maintenance of ‘public order’ and had he been let free there would have been every likelihood of his re-indulging in anti  national/anti social activities and will continue create law and order  problem by organizing strikes and anti national rallies in the Banihal area  of District Ramban with the association of other likeminded people of the  area. 

5. Heard learned counsel for both the sides at length and considered the  record. 

6. Learned counsel for the detenue while being heard makes reference to the  grounds of the detention and states that on a cursory look on the same it is  manifest that same are vague. It is also submitted that the Detaining  Authority on the basis of dossier submitted by Superintendent of Police,  Ramban, without application of mind and without evaluating the  allegations alleged against the detenue in the said dossier, copy of which was not even provided to the detenue, proceeded to pass impugned  detention order whereby the detenue has been detained and directed to be  lodged at Central Jail Jammu. In addition, learned counsel submitted that 

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the allegations levelled against the detenue are totally vague as nothing  specific has been stated in the grounds of detention. 

7. In rebuttal, learned GA submits that the record reveals that there is no  vagueness in the grounds of detention. The procedural safeguards  prescribed under the provisions of Public Safety Act and the rights  guaranteed to the detenue under the Constitution have strictly been  followed in the instant case. The detenue has been furnished all the  material, as was required, and was also made aware of his right to make  representation to the detaining authority as well as government, against  his detention. 

8. Personal liberty is one of the most cherished freedoms, perhaps more  important than the other freedoms guaranteed under the Constitution. It  was for this reason that the Founding Fathers enacted the safeguards in  Article 22 in the Constitution so as to limit the power of the State to  detain a person without trial, which may otherwise pass the test of Article  21, by humanising the harsh authority over individual liberty. In a  democracy governed by the rule of law, the drastic power to detain a  person without trial for security of the State and/or maintenance of public  order, must be strictly construed. However, where individual liberty  comes into conflict with an interest of the security of the State or public  order, then the liberty of the individual must give way to the larger  interest of the nation.  

9. Before appreciating the rival contentions of the parties, it would be  appropriate to note that the procedural requirements are the only  safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority as has been laid down by 

Hon’ble Apex Court in a case titled Abdul Latif Abdul Wahab Sheikh 

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Vs B.K. Jha & Anr., reported as (1987) 2 SCC 22. The procedural  requirements are, therefore, to be strictly complied with, if any value is to  be attached to the liberty of the subject and the constitutional rights  guaranteed to him in that regard. 

10. The detention record, as produced, reveals that the detenue was involved  in following cases registered at Police Station Banihal vide:- 

(i) FIR No. 124/2008 u/s 295-A, 298, 336, 427, 147 &148 RPC; (ii) FIR No.168/2008 u/s 147,148, 149, 190, 180 & 153-A RPC; (iii) FIR No. 126/2016 u/s 147, 341, 120-B &121-A RPC; 

(iv) FIR No. 51/2018 u/s 341, 147, 121-A &120-B RPC; and 

(v) FIR No. 110/2019 u/s 341, 147, 148, 120-B &121 RPC. 

Involvement of the detenue in the aforementioned cases appears to have  heavily weighed with the detaining authority while passing detention  order. Petitioner, per contra, submits that out of the five afore-stated  cases, one case has been closed, whereas four cases are under  investigation. 

11. The requirement of law is that whole of the record, on which the detention  order is based, has to be made available to the detenue in the language  that he understands. The detenue herein is said to be 8th pass and as per  the execution report, he has been furnished copies of detention order (01)  leaf, grounds of detention (05) leaves, dossier of detention (nil) and other  related documents (02) leaves (total eight leaves). However, he has not  been provided with copies of dossier, FIRs, charge-sheets and statements  of witnesses. The detenue, thus cannot be said to be provided with whole  of the record which based his detention, so as to make an effective  representation. The detention order also does not indicate with regard to the right of making representation. The failure on the part of the detaining  authority to supply material renders detention illegal and unsustainable. 

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12. Hon’ble the Supreme Court in a case titled Chaju Ram Vs The State of  Jammu & Kashmir, reported as AIR 1971 SC 263, held in Para-9 of the  judgment as under:- 

“………The detenu is an illiterate person and it is absolutely  necessary that when we are dealing with a detenu who  cannot read or understand English language or any  language at all that the grounds of detention should be  explained to him as early as possible in the language he  understands so that he can avail himself of the statutory right  of making a representation. To hand over to him the  document written in English and to obtain his thumb  impression on it in token of his having received the same  does not comply with the requirements of the law which gives  a very valuable-right to the detenu to make a representation  which right is frustrated by handing over to him the grounds  of detention in an alien language. We are therefore  compelled to hold in this case that the requirement of  explaining the grounds to the-detenu in his own language  was not complied with.” 

13. It shall also be quite apposite to reproduce the following portions from  Paras 3 and 5 of the judgment rendered by Hon’ble the Supreme Court in  the case titled “Raziya Umar Bakshi Vs Union of India & Ors.” (AIR  1980 SC 1751)

“3…….The service of the ground of detention on the detenu is  a very precious constitutional right and where the grounds  are couched in a language which is not known to the detenu,  unless the contents of the grounds are fully explained and  translated to the detenu, it will tantamount to not serving the  grounds of detention to the detenu and would thus vitiate the  detention ex-facie. 

5……….in cases where the detaining authority is satisfied that  the grounds are couched in a language which is not known to  the detenu, it must see to it that the grounds are explained to  the detenu, a translated script is given to him and the  grounds bear some sort of a certificate to show that the  grounds have been explained to the detenu in the language  which he understands.” 

14. The Hon’ble Apex Court in the judgment rendered in the case of “Sophia  Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC  3051), has also held as under:

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“The right to be communicated the grounds of detention  flows from Article 22(5) while the right to be supplied all the  material on which the grounds are based flows from the right  given to the detenu to make a representation against the  order of detention. A representation can be made and the  order of detention can be assailed only when all the grounds  on which the order is based are communicated to the detenu  and the material on which those grounds are based are also  disclosed and copies thereof are supplied to the person  detained, in his own language.” 

15. Vide impugned order, the Detaining Authority has not communicated to  the detenue his right to represent against the order to him, not to speak of the time limit, in which, he could make a representation to him, till  approval of the detention order by the Government. In a case of National  Security Act, titled “Jitendra Vs. Dist. Magistrate, Barabanki & Ors.”,  reported as 2004 Cri.L.J 2967, the Division Bench of Hon’ble Allahabad  High Court, has held:- 

“10. We make no bones in observing that a partial  communication of a right (in the grounds of detention) of the  type in the instant case, wherein the time limit for making a  representation is of essence and is not communicated in the  grounds of detention, would vitiate the right fundamental  right guaranteed to the detenue under Article 22(5) of the  Constitution of India, namely, of being communicated, as  soon as may be the grounds of detention.” 

16. This is another reason, as to why the impugned order would be vitiated  since the detenue’s right to make a representation to the detaining  authority was only available to him till approval of detention order by the  Government, it follows as a logical imperative that the detaining authority  should have communicated to the detenue in the grounds of detention the  time limit, in which, he could make a representation to it i.e., till the  approval of the detention order by the State Government. 

17. Reproducing the dossier prepared by the Senior Superintendent of Police,  Ramban in the order of detention, almost word by word; non furnishing of  the whole of the record on which detention order was based; furnishing 

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the material in English and not the language of the detenue; and not  informing detenue of his right to make representation before the Detaining  Authority or the Government, all reflect that the Detaining Authority has  not applied its mind to draw the subjective satisfaction to detain the  petitioner and detenue has also been deprived of his fundamental right to  make effective and meaningful representation against the detention order to the Detaining Authority and the government.  

18. For the foregoing reasons and the law laid down as above, this petition is  allowed. Impugned order of detention No. DMR/PSA/2021/1667-72 dated 09.07.2021 passed by the District Magistrate, Ramban, is, as such,  quashed. The detenue namely Tariq Ahmed S/O Abdul Rehman R/O  Hollan Tehsil Banihal District Ramban, is ordered to be released from the  preventive custody forthwith provided he is not required in connection  with any other case(s). 

19. Detention record, as produced, be returned to the learned GA. 20. Disposed of, accordingly. 

 (M.A.Chowdhary)   Judge  

JAMMU  

23.03.2022 

Vijay 

Whether the order is speaking: Yes 

Whether the order is reportable: Yes

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