Cogent Cause & Strict Adherence To Constitutional Safeguards Must To Curtail Personal Liberty: J&K High Court Quashes Preventive Detention Order

Justice Sindhu Sharma observed:

"The respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. This petition is, accordingly, allowed and impugned detention order No. 03/PSA of 2021 dated 16.06.2021 passed by District Magistrate, Samba is quashed. The detenu is directed to be released from preventive custody forthwith, if he is not required in connection with any other case."

In the present case the detention order was passed by the District Magistrate detaining the detenu under Section 8 (1)(a) of the Jammu and Kashmir Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the maintenance of public order.

The petitioner had challenged it on the following grounds:

• The impugned detention order was passed when the detenu was already in judicial custody.
• The respondents did not disclose any compelling circumstances which require the preventive detention of the detenu.
• The detenu was arrested in FIR No. 66/2003 and was acquitted of the same and similarly the detenu was granted bail in FIR Nos. 33/2009 and 86/2010 but the respondent-Detaining Authority has not shown any awareness to this fact, therefore, there is lack of application of mind while passing the order.
• The detenu was not provided all the material relied upon by the Detaining Authority while passing order of detention, as such, precluded him from his right of making effective representation; and
• The detenu, immediately, after his arrest on 12.07.2021 moved a representation to respondents but the same has been neither considered nor decided till date. The detenu has a statutory right to make a representation against his detention to the respondents, who are under duty to consider the same.

The respondent argued that the activities of the detenu were prejudicial to the maintenance of law and order and tranquility, as such, detenu was detained under the Jammu and Kashmir Public Safety Act, 1978. It was argued that The detenu, is a hardcore criminal and had attained notoriety and the common law of the land had failed to deter him from undertaking activities prejudicial to the maintenance of public order, therefore, in order to maintain peaceful atmosphere and to prevent him from spreading, expanding and continuing his criminal activities and disturbing public order, it had become necessary to detain him under Public Safety Act.

Further the respondent argued that there is no legal or procedural infirmity in order of detention, as such, the petition deserves to be dismissed. He said that the detenu was provided with the grounds of detention which were duly explained to him in the language he understands.

The respondent also argued that petitioner was also informed about his right to make a representation. It is urged that the grounds of dentition are definite, proximate and free from any ambiguity and all Constitutional safeguards have been followed. It is also submitted that detenu was also informed about what actually weighed with the Detaining Authority while passing the order of detention under Section 8 of J&K Public Safety Act, 1978.

Court noted that on perusal of the order and the grounds of detention reveals that the Detaining Authority has not shown any awareness to the fact that the detenu was acquitted in FIR No. 66/2003 and was granted bail in FIR Nos. 33/2009, 86/2010 and 203/2019. Further it was noted that the Detaining Authority has also failed to disclose the compelling reasons for passing order of detention when the detenu was already in custody. The Detaining Authority has, thus, failed to show compelling reasons warranting the detention of the detenu under Section 8 of the J&K Public Safety Act.

"There is no response to the averment that the detenu was granted bail in FIR No. 33/2009, FIR No. 86/2010, FIR No. 203/2019 and acquitted in FIR No. 66/2003. The Detaining Authority was, thus, not alive to the situation and, thus, there was total non-application of mind by the Detaining Authority while passing the order of detention, as such, the impugned detention was vitiated." court said

Court observed that Article 22(5) of the Constitution of India provides for specific protection to undertrials and detainee. And the respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. Accordingly it was quashed.

"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 impugned detention order for the reasons stated is unsustainable in the eyes of law. 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," it said.

Case Title: Anil Singh V/s UT of J&K and another

Citation: 2022 LiveLaw (JKL) 20