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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
VINOD CHATTERJI KOUL, J.
Mohd. Amin – Appellant
Versus
Union Territory of J&K and others – Respondents
WP(Crl) No.51 of 2022
Decided on : 04-08-2023
Public Safety Act - Challenge to detention order - Section 8 of the Public Safety Act 1978 - Summary of Acts and Sections: Public Safety Act 1978, Section 8, Section 21 of the General Clauses Act, Svt. 1977, Article 22(5) of the Constitution of India - The court discussed the provisions of the Public Safety Act 1978, the right to make representation against the detention order, and the duty of the detaining authority to inform the detenu of his right to make representation. The court highlighted the violation of constitutional and statutory rights of the detenu, which vitiates the impugned detention.
Fact of the Case:
The petitioner challenged the order of detention passed by the District Magistrate, Ramban, under Section 8 of the Public Safety Act 1978. The petitioner alleged that the detention was illegal, as the allegations against him were vague and false, and he was not provided with the relevant documents to make an effective representation. The respondents argued that the petitioner raised disputed questions of facts, which cannot be adjudicated through a writ petition.
Finding of the Court:
The court found that the detention was unjustified and quashed the impugned order of detention, setting the petitioner at liberty.
Issues: The issues involved the legality of the detention under the Public Safety Act 1978, the right to make representation, and the duty of the detaining authority to inform the detenu of his right to make representation.
Ratio Decidendi: The court held that the detaining authority's failure to inform the detenu of his right to make representation constituted an infraction of the detenu's constitutional and statutory rights, which invalidated the order of detention.
Final Decision: The petition was allowed, and the impugned order of detention was quashed, leading to the petitioner's release.
JUDGMENT :
1. Order of detention No.19/PSA/2022 dated 25.08.2022 passed by District Magistrate Ramban, whereby he in exercise of powers under Section 8 of the Public Safety Act 1978 has directed petitioner to be detained in Central Jail Kot Bhalwal, with a view to prevent him from acting in any manner which is highly prejudicial to the maintenance of the public order has been challenged by the petitioner in this writ petition.
2. The order of detention has been challenged mainly on the grounds that the respondent No. 2 merely on the basis of report of Sr. Superintendent of Police Ramban without application of mind and without evaluating the allegations alleged against him and without supplying the dossier to him proceeded to pass the impugned order whereby he has been detained and lodged at Central Jail Kot Bhalwal. Allegations leveled against him are vague and nothing specific has been stated in the grounds of detention nor compelling reasons have been disclosed and the petitioner on the date of passing of the order of detention was already in the detention of the police since 03.08.2022. Respondent No. 2 had formulated his opinion to detain him on the basis of two FIRs, FIR No. 43/2003 and FIR No. 2/2007 but allegations are totally false and frivolous. He had already been acquitted by the competent Court in the aforesaid FIRs. He further submits that he was not provided with the copy of dossier and other relevant documents which prevented him from making effective representation. The detention of the petitioner is illegal and in violation of the provisions. He was never referred to advisory board. The order of detention has been passed without application of mind.
3. Respondents have filed their reply, in which they have submitted that petitioner has raised disputed questions of facts which cannot be adjudicated upon through the medium of this writ petition and as such the writ petition merits dismissal. It is submitted that the Senior Superintendent of Police, Ramban, vide communication No. CB/DOSSIER/22/11596, dated 23.08.2022, submitted a dossier of illegal activities recommending therein case for detention of the petitioner under the provisions of J&K Public Safety Act, 1978. The dossier has been examined in light of the legal provisions and circumstances related to the case, details of which have been furnished by the District Police, Ramban. The petitioner was reportedly involved in anti-national/anti-social activities, creating law and order problems in Banihal Tehsil. He was a surrendered militant, who had joined militancy in December, 1999 and illegally crossed the border via Sabzian (Poonch) for arms training in Pakistan from where he went to Afghanistan (Rishkoor place) for further training. After training, he infiltrated into India in March 2022 through Maind, Poonch Border and reached Srinagar and remained active commander with code name “Khalid”. Later on, in 2003, he was arrested by Lakhanpur police with some arms and ammunition and Hawala money and case FIR No.43/2003 under Sections 121-A/121/123/120-B/8/25 Act, Explosive Substance Act was registered at P/S Lakhanpur. He was lodged in Kot Bhalwal Jail, Jammu till 2006. Thereafter, he was arrested by Special Cell of Delhi Police and a case FIR No.02/2007 under Sections 121, 121-A, 122, 123, 120-B IPC, 16, 18, 20 ULA (P) Act was registered at P/S Special Cell Delhi against him, where he was charge sheeted and after trial, he was convicted and remained in Tihar Jail from 2007 to 2014. His brother, namely Mohd. Akhter Wani, is lodged in Lucknow Jail since 2008 and was sentenced to life imprisonment. His name also exists in the list of arrested/released militants as well as over ground workers (OGW) in the record of Police Station, Banihal. His activities are very harmful and highly prejudicial for the peace, prosperity, tranquility, integrity and security of the UT of J&K, particularly in Banihal. He instigates and provokes the general masses particularly youth of B
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