The detention under the J&K Public Safety Act can be invalidated if the detaining authority fails to provide essential material to the detainee for making an effective representation, and if the alleged criminal activities can be addressed adequately under ordinary law.

JUDGMENT :

Mohan Lal, J

1. This intra-court appeal (LPA under clause 12 of Letters Patent) has been preferred against the judgment and order of single judge dated 16.11.2022 rendered in writ petition bearing WP (Crl) No. 75/2022 titled Fayaz Ahmad Shah V. Government of J&K & Ors., whereby, the detention order bearing No. DMS/PSA/123/2021 dated 28.02.2022 passed by respondent No. 2 under the provisions of J&K Public Safety Act has been upheld.

2. Being aggrieved of and dissatisfied with the impugned judgment dated 16.11.2022, appellant/detainee has assailed it’s legality, propriety and correctness, and has sought it’s quashment on the following grounds:-

(i) that the appellant was implicated in case FIR No. 50/2006 and was acquitted in the year 2012 vide judgment of trial court dated 09.08.2012, appellant is also implicated in 2nd FIR No. 27/2007 which though sub-judice and has not progressed for the inability of the prosecution to produce and examine its witnesses, there is no live and proximate link between the alleged activity of the detenue and detention order, appellant was not specifically shown to be involved in any subversive activities even then the respondents unjustifiably booked him under the provisions of J&K Public Safety Act vide detention order bearing No. DMS/PSA/123/2021 dated 28.02.2022;

(ii) that aggrieved of the aforesaid detention order, appellant challenged the same before Hon’ble Writ Court by filing writ petition bearing WP (Crl) No. 75/2022 titled Fayaz Ahmad Shah V. Government of J&K & Ors., respondents filed their counter affidavit in which the averments and grounds of challenge agitated by appellant were not specifically repelled, however without appreciating the grounds agitated in the writ petition and by incorrect appreciation of law the aforesaid writ petition came to be dismissed by the Ld. Writ Court vide impugned judgment and order dated 16.11.2022;

(iii) that the Ld. Single Judge has not appreciated the grounds of challenge while passing impugned judgment and order, has not considered the law referred and judgments supplied and relied upon by appellant nor any reference has been made to all the grounds taken in the writ petition, on this sole ground the impugned judgment and order of the writ court as well as impugned detention order is liable to be set aside;

(iv) that in the writ petition it was agitated that appellant/detainee has not been provided the relevant material which forms basis for passing of detention order, but while addressing this point in paragraph 9 of the impugned judgment, Ld. Single Judge has wrongly concluded that the requisite material has been supplied/provided to the detainee, whereby, the valuable right of the detenue to be informed about his right of making representation against his detention under Article 22(5) r/w Section 13 of J&K Public Safety Act has been infringed/violated;

(v) that the Ld. Single Judge has erroneously placed reliance on the decision of Hon’ble Supreme Court rendered in the case of Gautam Jain Vs. Union of India (2017) 3 SCC 133 to hold that detention order will survive even if one of the grounds is found to be unfounded or legally sustainable if detention order is passed on more than one ground, it is submitted that the aforesaid decision is applicable only in a case where detention order is based on more than one grounds independent of each other, however in the instant case the detention order is not based on various independent grounds but on sole ground that the detenue is allegedly involved in trafficking of narcotic drugs, the rest of the grounds are merely ancillary to this ground and not independent of it, thereby decision rendered in Gautam Jain’s case (Supra) is not applicable to the instant case;

(vi) that the writ court has failed to appreciate the fact that no compelling reasons have been assigned by the detaining authority for taking recourse to the provisions of Public Safety Act instead of dealing with the appellant under ordinary l