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2019 Supreme(J&K) 392
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Gita Mital, Rashid Ali Dar, JJ.
Ashiq Ahmad Malik - Appellants
Versus
State of J&K & anr. - Respondents
LPAHC No.01 of 2019
Decided On : 08-07-2019
Advocate Appeared:
For the Appellant :Mr. Wajid Haseeb, Advocate.
For the Respondent: Ms. Asifa Padroo, AAG.
Headnote:
Constitution of India,1950 - Article 22(5) –Criminal Procedure Code,1973 – Section,161 and 164-A- Public Safety Act - Section 13 – FIR – Quash - Allegations made in grounds of detention are vague, non-existence and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable detaining authority has mentioned two FIRs in grounds of detention however allegations as against detenue are far from reality - That allegations as reflected in grounds of detention are vague and do not justify the passing of detention order on the basis of such allegations detaining authority has not given any reasonable justification pass detention order and has not given any details of the allegations month/date of occurrences nor the details allegations in such FIRs in grounds detention have been given - very basis of the satisfaction recorded by detaining authority vague –Held, Government timeframe in Section given not later than five days and in exceptional circumstances for reasons to recorded in writing not later than ten days from date of detention.Advisory Board had no vires deal with representation even if same filed before it because the authority created terms provisions of the Public Safety Act for considering the representation Section Government and detaining authority respectively too Statute could not submit a representation either to detaining authority or Government after this period over as detention order has been executed and so mechanism delineated Act was not workable - There no provision either in Constitution or in Act empowering this court to work out formula for examining necessity or genuineness of the preventive detention by directing the Advisory Board consider representation now be filed Procedural requirements are only safeguards available for reason that Court is not expected to go behind subjective satisfaction of detaining authority - As laid down by Supreme Court and another procedural requirements are, therefore, be strictly complied with any value to be attached to liberty of the subject and the Constitutional rights guaranteed to him in that regard case law on subject of preventive detention baseline that emerges is that whenever preventive detention is called in question in a court of law first and foremost task before the Court is to see whether procedural safeguards guaranteed Article Constitution of India and Preventive Detention Law pressed into service to slap the detention are adhered Court terms of above legal position is clear that direction in terms of which writ petition has been disposed of was not proper - Advisory Board had no power to entertain representation now - Single Judge has overlooked vital aspect matter while disposed of writ petition with liberty to make representation - Even otherwise Court could not shun its responsibility to examine legality of order in light of the above referred facts and circumstances and obligations imposed it by Constitution – Order accordingly
JUDGMENT :
RASHID ALI DAR, J.
1. Legality of judgment passed on 03.01.2019 by learned Single Judge is called in question by the appellant. Learned Writ Court has disposed of Habeas Corpus Petition presented on behalf of Ashiq Ahmad Malik (hereinafter referred to as the detenu), with the following observations :
“Accordingly, the present writ petition is disposed of by giving liberty to the petitioner to approach the Advisory Board for redressal of his grievance. Any application filed by the petitioner before the Advisory Board shall be disposed of expeditiously as question of liberty of the petitioner is involved.”
2. From the perusal of record, it appears that the appellant, in the writ petition, had challenged the order of detention bearing No.DMS/PSA/09/2018 dated 19.06.2018, passed by District Magistrate, Srinagar, precisely, on the following grounds:
(i) That the case mentioned in the grounds of detention has no nexus with the detenue and has been fabricated by the police in order to justify illegal action of detaining the detenue;
(ii) That the allegations made in the grounds of detention are vague, non-existence and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. The detaining authority has mentioned two FIRs in grounds of detention, however, the allegations as against the detenue are far from reality;
(iii) That the allegations as reflected in the grounds of detention are vague and do not justify the passing of detention order on the basis of such allegations. The detaining authority has not given any reasonable justification to pass the detention order and has not given any details of the allegations, month/date of the occurrences nor the details of allegations in such FIRs as levelled in the grounds of detention have been given. The very basis of the satisfaction recorded by the detaining authority is vague;
(iv) That the detenue was already arrested in case FIR 30/2018 and 280 2017 and in the said cases he was admitted to bail four months before the detention order was passed: however, this important fact has not been mentioned in the grounds of detention that the detenu was already admitted to bail in the aforementioned cases and on this ground the detention order suffers from non-application of mind;
(v) That the order of detention has been passed on 19.06.2018, however, it has been executed in the month of August after a delay of two months despite the fact that he was all along available and was bound by bail bonds in the cases in concerned Police Station and otherwise also no effort has been made by the respondents to execute the detention order. The delay in execution also renders the impugned detention order bad in law;
(vi) That the detaining authority has not prepared the grounds of detention by itself which is a pre-requisite for him before passing any detention order and the grounds of detention are replica of the police dossier placed before the detaining authority as per record The detaining authority seems to have worked on the dictates of police authorities and has not enquired about the existence of the facts by perusing the supporting material;
(vii) That the respondent No.2 has not furnished the relevant material like copy of dossier and so called connected material as per record furnished to the detaining authority by police and relied upon by the detaining authority for passing the order of detention, nor the relevant material, like copy of FIR, statement u/s 161 and 164-A Cr. P. C, seizure memos, so called disclosure memo of the cases mentioned in the grounds of detention, has been furnished to the detenu to enable mm to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by the detaining authority concerning alleged involvement of the detenue in the alleged activities against the said order to the competent authority. Since the
