Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 166

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
M.A. CHOWDHARY, J.

Sadam Hussain Ganie, S/o. Abdul Salam Ganie, through his brother Ab. Waheed Ganie - Petitioner
Versus
Union Territory of J. & K. Through Additional Chief Secretary, Department of Home and Ors. – Respondents
WP(Crl) No. 62 Of 2022, CrlM No. 6395 Of 2022
Decided On : 12-09-2023

Advocates Appeared:
For the Petitioner: Mr. R.K.S. Thakur, Ms. Neha Abrol.
For the Respondents: Mr. Eishaan Dadhichi.

The main legal point established in the judgment is the importance of strict compliance with procedural requirements and safeguards under the Public Safety Act and the Constitution, particularly in communicating the grounds of detention in a language understood by the detenue and ensuring the right to make a representation against the detention order.

Headnote:
Public Safety Act - Challenge to detention order under Jammu & Kashmir Public Safety Act, 1978 - Section 8 - Article 21 of the Constitution of India - Summary of Acts and Sections: The court discussed the procedural requirements and safeguards available to the detenue under the Constitution and the Public Safety Act. It emphasized the importance of communicating the grounds of detention in a language understood by the detenue and the right to make a representation against the detention order. The court also highlighted the need for a live and proximate link between the past conduct of the detenue and the imperative need to detain, and the limitations on relying on old and stale incidents to justify preventive detention.
Fact of the Case:

The District Magistrate, Ramban issued a detention order under the Jammu & Kashmir Public Safety Act, 1978 against Sadam Hussain Ganie. The detenue challenged the order, alleging violation of Article 21 of the Constitution of India and Section 13(1) of the Public Safety Act. The detenue claimed that the grounds of detention were vague and not provided in a language he understood.
Finding of the Court:

The court found that the detaining authority did not comply with the procedural requirements and safeguards prescribed under the Public Safety Act and the Constitution. It held that the detention order was illegal and unsustainable due to the failure to provide the detenue with the whole of the material on which the detention order was based and the lack of communication regarding the right to make a representation within a specified time limit.
Issues: The issues included the vagueness of the grounds of detention, the language in which the grounds were communicated, and the failure to inform the detenue of his right to make a representation within a specified time limit.
Ratio Decidendi: The court emphasized the importance of communicating the grounds of detention in a language understood by the detenue and the right to make a representation against the detention order. It also highlighted the need for a live and proximate link between the past conduct of the detenue and the imperative need to detain, and the limitations on relying on old and stale incidents to justify preventive detention.
Final Decision: The court quashed the impugned detention order and ordered the release of the detenue from preventive custody, provided he was not required in connection with any other case(s). The writ petition was disposed of accordingly.

JUDGMENT :

1. District Magistrate, Ramban (hereinafter called ‘Detaining Authority’) in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. 20/PSA of 2022 Dated 27.09.2022 (for short ‘impugned order’), in terms whereof the detenue namely Sadam Hussain Ganie S/O Abdul Salam Ganie R/O Village Fagow Duligam, Tehsil Banihal, District Ramban (for short ‘detenue’) has been detained.

2. The impugned detention order has been challenged through the medium of the instant petition, allegedly having been passed in breach of the provisions of Article 21 of the Constitution of India read with Section 13(1) of the 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; that the detenue has been incapacitated in filing a representation as the grounds of detention are not in a language which could be understood by the detenue; that the detenue is not an English literate person and understands only Urdu/Kashmiri language but the order of detention is in English and it is not possible for him to understand such a hyper technical language; and 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 21 of the Constitution of India; that neither the petitioner is threat to the public order nor he has committed any such crime which has disturbed the society at large;.

4. Respondents in their counter affidavits 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/criminal activities; that the power of preventive detention is different from punishment as the preventive detention is aimed at stopping the illegal activities of an individual, which, otherwise, under common law both criminal/civil cannot be stopped and the said individual creates a havoc in the society which leads to public disorder, disturbing peace, prosperity, tranquility, integrity and security of the UT of J&K, particularly in Banihal; that the petitioner remains instigating and provoking the general masses, particularly youths of Banihal and its adjoining area against the Government and to disturb peaceful law and order situation at Banihal, the petitioner tried to create communal tension and usually remained busy in illegal activities. It is being stated that the elder brother of the petitioner namely Mohd Abass had joined militancy about 25 years ago and crossed over to Pakistan and is presently operating from Pakistan; the petitioner was in close contact with his brother namely Mohd Abass on mobile phone as well as social media and he was providing information regarding sensitive matters of this side to his brother who is a terrorist. It is being also stated that mobile phone of the petitioner has been checked and found that he was in close contact with his brother (terrorist) namely Mohd Abbas who exfiltrated to Pakistan about 25 years ago on mobile as well as WhatsApp No. +(202)7736230. During scrutiny, three contact numbers belongings to out of India were found in the phone book of the petitioner, moreover a video was found in his phone in which there was song of POK regarding alleged atrocities conducted in Kashmir; that the petitioner had sent the video to his brother Mohd Abbas who urged him to share more such videos of Kashmir and also told the petitioner to share contact number of any relative in Kashmir and the petitioner shared contact of one of his relative in Kashmir to Mohd Abbas. It is also being stated that the petitioner is involved in numerous criminal activities, was not likely to desist from his anti-national/criminal activities which were prejudicial to the maintenance of peace and public order in District Ramban.

5. Learned counsel for the d