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2013 Supreme(J&K) 25
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Showkat Ahmad Teli -Appellant
Versus
State & Ors. -Resopndent
HCPNo:156/2012
Decided On : 04-01-2013
Mr. M.A. Qayoom for the Petitioner(s).
Mr. S.A. Naik, AAG for the Respondent(s).
The central legal point established in the judgment is the importance of the detaining authority's proper assessment, respect for the right to make an effective representation against the detention, and strict observance of procedural safeguards in passing preventive detention orders.
Headnote:
Public Safety Act - Preventive Detention - Section 8(a) of J&K Public Safety Act - Summary of Acts and Sections: J&K Public Safety Act, 1978 - Section 8(a), Article 22(5) of the Constitution of India, Article 21, Article 22(3)(b) - The court discussed the interpretation and application of Section 8(a) of the J&K Public Safety Act, as well as the constitutional provisions under Article 22(5), Article 21, and Article 22(3)(b) in relation to the right to liberty and procedural safeguards. The court also highlighted the distinction between 'maintenance of public order' and 'security of the State' as defined in the Act, emphasizing the importance of strict compliance with procedural safeguards to ensure the liberty of the subject.
Fact of the Case:
The detenue was taken into preventive custody under Section 8(a) of the J&K Public Safety Act due to activities prejudicial to public order and security of the State. The petitioner sought quashment of the detention order on various grounds, including lack of certainty in the detaining authority's assessment and deprivation of the right to make an effective representation against the detention.
Finding of the Court:
The court found that the detaining authority had not applied its mind while passing the order of detention, and the petitioner's right to make an effective representation against the detention was infringed. The court also emphasized the importance of observing procedural safeguards in passing preventive detention orders.
Issues: Certainty in the detaining authority's assessment, deprivation of the right to make an effective representation against the detention, and observance of procedural safeguards in passing preventive detention orders.
Ratio Decidendi: The detaining authority must apply its mind while passing the order of detention, and the right to make an effective representation against the detention must be respected. Observance of procedural safeguards is crucial in passing preventive detention orders.
Final Decision: The court quashed the order of detention and directed that the custody of the detenue shall be governed by the orders passed by the competent court in connection with the case. The detention records were to be returned to the respondents' counsel.
2. It is the contention of learned counsel for the petitioner that in the impugned order of detention it is recorded that the District Magistrate was satisfied to prevent the detenue from acting in any manner prejudicial to the "maintenance of public order". In the grounds of detention, it is recorded that the detenue has applied for release on bail in connection with case FIR No.92/2012 P/S Sopore and in case he is released, his activities will be very dangerous for overall safety/security of common citizens and society, he is inimical to peace and tranquility of the State. Then it is recorded that in case detenue will remain at large, he will effect peaceful atmosphere as "well as law and order situation" and "security of the State". Finally it has been concluded as under:-
"It is manifest from factual position as at pre-paras that your activities are highly pre-judicial to the security of the State and to prevent/deter you from these unlawful activities and also due to inadequacy of statutory provision of law to prevent you from falling prey to mechanism of militants and their nefarious designs, you are hereby detained under the provisions of J&K Public Safety act, 1978 and you have a right to represent against your detention if you choose so".
3. The District Magistrate has not been himself certain as to whether activities of the detenue are threat to the "maintenance of public order" or "security of the State" because in grounds of detention finally he has concluded that his activities are prejudicial to the "security of the State", therefore, he is required to be deterred from unlawful activities whereas in the order of detention he has recorded that his activities are prejudicial to the "maintenance of public order". The said position suggests that the detaining authority has not applied its mind while passing the order of detention. In support, learned counsel has relied on the judgment captioned G.M. Shah v. State of J&K, reported in (1980) 1SCC132:2010 (6) JKJ SC-850. Para 9 of the judgment is relevant to be quoted:
"As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the main#31;tenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detent has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors. and Satya Brata Ghose v. Arif Ali & Ors.
4. Next learned counsel for the petitioner would contend that the material forming base for the grounds of detention, such as dossier and other connecting documents as reflected in the
