Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SINDHU SHARMA, J.
Reyaz Ahmad Dar – Petitioner
Versus
UT of J&K and Another – Respondents
WP (Crl) No. 07 of 2022
Decided On : 12-08-2022
Detention - J&K Public Safety Act - Section 8 - 11(1)(a) - 11(1)(b) - 11(2) - 22(5) - 13 - [Summary of Acts and Sections: J&K Public Safety Act, 1978, Section 8; General Clauses Act, Section 21; Constitution of India, Article 22(5); J&K Public Safety Act, Section 13; J&K Public Safety Act, Section 11(1)(a); J&K Public Safety Act, Section 11(1)(b); J&K Public Safety Act, Section 11(2)] - The court discussed the legality of the detention order under Section 8 of the J&K Public Safety Act, 1978 and referred to relevant legal provisions such as Section 11(1)(a), Section 11(1)(b), Section 11(2), Article 22(5), and Section 13 of the J&K Public Safety Act. The court emphasized the requirement for fresh facts for passing a subsequent detention order and the need to provide all relevant material to the detenue for making an effective representation. The judgment highlighted the constitutional and procedural safeguards provided to the detenue under the Constitution of India and J&K Public Safety Act, and the implications of non-compliance with these safeguards on the legality of the detention order.
Fact of the Case:
The detenue was detained under Section 8 of the J&K Public Safety Act, 1978 to prevent him from acting in any manner prejudicial to the security of the State. The detention order was challenged on grounds of vagueness of allegations, non-disclosure of previous acquittals, lack of fresh activity, and non-provision of relevant material for representation.
Finding of the Court:
The court found that the detention order, based on the same grounds as the earlier quashed orders, was arbitrary and illegal. It held that the detention order was vitiated and unsustainable due to the reliance on grounds from the earlier quashed order. Additionally, the failure to provide all relevant material to the detenue rendered the detention illegal.
Issues: The issues included the legality of the detention order under Section 8 of the J&K Public Safety Act, non-disclosure of previous acquittals, lack of fresh activity, and non-provision of relevant material for representation.
Ratio Decidendi: The court's decision was based on the interpretation of legal provisions such as Section 11(1)(a), Section 11(1)(b), Section 11(2), Article 22(5), and Section 13 of the J&K Public Safety Act, emphasizing the requirement for fresh facts for passing a subsequent detention order and the need to provide all relevant material to the detenue for making an effective representation.
Final Decision: The petition was allowed, and the detention order was quashed. The respondents were directed to release the detenue from custody forthwith, provided he was not required in any other case.
JUDGMENT :
SINDHU SHARMA, J.
1. The District Magistrate, Budgam detained the detenue-Reyaz Ahmad Dar under Section 8 of the J&K Public Safety Act, 1978 vide his office Order No. DMB/PSA/11 of 2021, dated 07.12.2021, to prevent him from acting in any manner prejudicial to the security of the State. This order of detention has been challenged by the detenue through his father-Ghulam Rasool Dar.
2. The order of detention has been assailed by the detenue on the grounds that: (i) the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against the same; (ii) the detenue was already acquitted of the charges in FIR No. 167 of 2004 and FIR No. 216 of 2013 after facing trial but this important fact has not been mentioned in the grounds of detention which shows total non-application of mind; (iii) the detenue was placed under detention earlier vide order dated 19.03.2017 and 24.01.2019 and when these detention orders were quashed in the habeas corpus petitions (HCP No. 166/2017 and HCP No. 62/2019) filed by the detenue which were decided on 05.09.2017 and 04.07.2019. Thereafter, no such fresh activity has been alleged to the detenue to pass the order of detention, as such, this order of detention is bad and is required to be quashed; (iv) the detenue was already in custody in FIR No. 135 of 2018 registered in Police Station, Chadoora and this important fact has not been reflected in the grounds of detention and neither any compelling reasons have been spelled out in the grounds of detention to pass the order of detention once the detenue was already in custody; (v) the last alleged activity attributed to the detenue as per the grounds of detention was in the year 2018 and thereafter no fresh activity has been attributed to the detenue; (vi) the detaining authority has not prepared the grounds of detention itself and, as such, this has resulted in vitiating the order of detention; (vii) the detenue has not been furnished the relevant material relied upon by the detaining authority while passing the order of detention and neither any opportunity of making representation has been given, as such, this has resulted in detenue not been able to make an effective representation and also has resulted in infraction of the rights as guaranteed to the detenue under law, thus, the detention is bad and is required to be set aside.
3. Mr. Satinder Singh Kala, learned A.A.G. has filed counter affidavit as well as produced the record.
4. Learned counsel for the respondents submits that the detenue was detained to prevent him from acting in any manner resulting in any of his past acts. The Detaining Authority has complied with all the constitutional and procedural safeguards provided to the detenue under the Constitution of India and J&K Public Safety Act. The detenue has been provided with all the requisite material relied upon by the Detaining Authority while passing the order of detention. The detenue was also informed of his right to make a representation against the order of detention.
5. Heard learned counsel for the parties and perused the record also.
6. The detenue, it is submitted was earlier placed under detention vide Order No. DMB/PSA/10/2017, dated 19.05.2017 and this detention order was quashed by this Court on 05.09.2017 in HCP No. 166/2017. The detenue was again detained vide detention Order No. DMB/PSA/03/2019, dated 24.01.2019 and this order was also quashed by this Court in HCP No. 62/2019, dated 04.07.2019. It is submitted that the detention of the detenue is on the same grounds on which the earlier orders of detention have been passed and quashed by this Court is arbitrary and illegal, thus, the detention order is required to be set aside.
7. The respondents have neither rebutted the averments in the reply affidavit nor placed any material on record to controvert the same. The order of detention by the Detaining Authority on the same grounds in part or as a whole would not be sust
The main legal point established in the judgment is the requirement for fresh facts for passing a subsequent detention order and the need to provide all relevant material to the detenue for making an....
Fresh preventive detention order invalid if based substantially on grounds of previously quashed detention order; prior grounds cannot be considered even in part, requiring new fresh facts.
The detention order was invalidated due to non-application of mind, failure to provide material to the detenue, and violation of procedural requirements.
Preventive detention is invalid if the individual is already in custody for a substantive offense, emphasizing the necessity for compelling reasons and proper application of mind by the detaining aut....
Detention order - detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the ground....
Preventive detention orders must demonstrate compelling reasons when a person is already in judicial custody; mere replication of police dossiers lacks legal validity.
It is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.
The necessity of compelling reasons for preventive detention, awareness of detainee's existing custody, and prompt consideration of representations under the Jammu and Kashmir Public Safety Act, 1978....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
