Non-communication of the right to make a representation before the detaining authority and the interchangeability of 'law and order' and 'public order' in the grounds of detention rendered the detention order unsustainable in law.

JUDGMENT :

1. Through the medium of instant petition, the petitioner has challenged order No. PSA/116 dated 09.05.2023 issued by respondent No. 2, District Magistrate, Kathua (hereinafter to be referred as “the detaining authority”), whereby the petitioner, Mir Hamza S/o late Sh. Alam Din, R/o village Bakrak Colony, Tehsil Marheen, District Kathua (for short “the detenue”) has been taken into preventive custody in order to prevent him from causing disruption in pubic peace and tranquility.

2. The impugned detention order has been challenged by the detenue on the grounds that whole of the material forming basis for formulating the grounds of detention has not been furnished to the detenue and as such, the constitutional mandate has not been adhered to by the respondents. It has been further contended that the translated version of the grounds of detention, which are in English language, has not been furnished to the petitioner, who is not well versed with English language. It has been also contended that there is no live and proximate link between the incidents mentioned in the grounds of detention and the object of the respondents to place the petitioner under preventive detention. It has further been contended that the petitioner has been presumably taken into preventive detention so as to prevent him from causing disruption in public peace and tranquillity, which is a ground alien to the Jammu and Kashmir Public Safety Act. Lastly, it has been argued that the petitioner has not been informed about his right to make a representation to the detaining authority thereby violating his vital constitutional right.

3. The respondents have filed counter affidavits of the detaining authority and respondent No. 4, Sr. Superintendent of Police, Kathua to contest the petition. In their counter affidavit, the respondents have submitted that the petitioner was initially arrested in the year, 2010 for his involvement in FIR No. 233/2010 of Police Station, Rajbagh and thereafter 13 more criminal cases have been registered against him in different Police Stations of District Kathua, which shows that the detenue is a habitual criminal and his activities are prejudicial to maintenance of the public peace. It has been submitted that all the constitutional and statutory safeguards have been adhered to by the respondents while passing the impugned order of detention. It has also been submitted that all the material on the basis of which the grounds of detention have been formulated was furnished to the detenue and the contents thereof were explained to him in Hindi/Dogri language, which he fully understands. In order to lend support to their contentions, the respondents have produced the detention record.

4. I have heard learned counsel for the parties and perused the record including the detention record produced by the respondents.

5. The first ground that has been urged by the learned counsel for the petitioner is that the petitioner has not been informed about his right to make a representation against the order of detention before the detaining authority. A perusal of the record shows that District Magistrate, Kathua, the detaining authority has given notice of detention to the petitioner vide his communication dated 09.05.2023, whereunder the petitioner has been informed that he may make a representation before the Government against the said order. In terms of said communication, the petitioner has not been informed about his right to make a representation before the District Magistrate, who has passed the impugned order of detention.

6. Sub-section (2) of Section 8 of the Jammu and Kashmir Public Safety Act provides that a detention order can be passed by a District Magistrate and Sub-section (4) of Section 8 of the Act provides that when any such order is made by the District Magistrate, he shall forthwith report the fact to the Government together with the grounds on which the order has been made. It also provides that such an order shall not