While fully, finally and firmly upholding the paramount importance of the personal liberty of each and every individual in our country, the Jammu and Kashmir and Ladakh High Court in an extremely commendable, cogent, courageous, composed, convincing and creditworthy judgment titled Anil Singh V/s UT of J&K in WP(Crl.) No. 62/2021 pronounced as recently as on April 28, 2022 has quashed a detention order passed by a District Magistrate, Samba while observing that the order was passed without keeping in mind the constitutional safeguards. It goes without saying that Judges must definitely always keep in mind the constitutional safeguards while ruling in similar such cases just as we see being done in this notable case also. No denying it.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Mrs Justice Sindhu Sharma of Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost putting forth in para 1 that, “The District Magistrate, Samba vide order No. 03/PSA of 2021 dated 16.06.2021 detained the detenu under Section 8 (1)(a) of the Jammu and Kashmir Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the maintenance of public order.”
To put things in perspective, the Bench then envisages in para 2 that, “The detenu has assailed the order of detention on the following grounds; (i) the impugned detention order was passed when the detenu was already in judicial custody in FIR No. 03/2021. The respondents have not disclosed any compelling circumstances which require the preventive detention of the detenu; (ii) the impugned order of detention is a verbatim copy of the police dossier, as such, there is total non-application of mind on the part of the Detaining Authority, while passing the order of detention; (iii) the detenu was arrested in FIR No. 66/2003 and was acquitted of the same vide order dated 08.01.2013, similarly the detenu was granted bail in FIR Nos. 33/2009 and 86/2010 but the respondent-Detaining Authority has not shown any awareness to this fact, therefore, there is lack of application of mind while passing the order; (iv) the detenu was not provided all the material relied upon by the Detaining Authority while passing order of detention, as such, precluded him from his right of making effective representation; and (vi) lastly, the detenu, immediately, after his arrest on 12.07.2021 moved a representation to respondents but the same has been neither considered nor decided till date.”
On expected lines, the Bench then enunciates in para 3 while stating the respondent version that, “The respondents in their objections have submitted that, the activities of the detenu were prejudicial to the maintenance of law and order and tranquility, as such, detenu was detained under the Jammu and Kashmir Public Safety Act, 1978. The detenu, it is submitted, is a hardcore criminal and had attained notoriety and the common law of the land had failed to deter him from undertaking activities prejudicial to the maintenance of public order, therefore, in order to maintain peaceful atmosphere and to prevent him from spreading, expanding and continuing his criminal activities and disturbing public order, it had become necessary to detain him under Public Safety Act.”
In addition, the Bench then states in para 4 that, “The respondents further submit that there is no legal or procedural infirmity in order of detention, as such, the petition deserves to be dismissed. The detenu was provided with the grounds of detention which were duly explained to him in the language he understands. He was also informed about his right to make a representation. It is urged that the grounds of dentition are definite, proximate and free from any ambiguity and all Constitutional safeguards have been followed. It is also submitted that detenu was also informed about what actually weighed with the Detaining Authority while passing the order of detention under Section 8 of J&K Public Safety Act, 1978.”
While pooh-poohing the detaining authority, the Bench after hearing the learned counsel for the parties and perusing the record as stated in para 5 then lays bare in para 6 that, “Perusal of the detention order and the grounds of detention reveals that the Detaining Authority has not shown any awareness to the fact that the detenu was acquitted in FIR No. 66/2003 and was granted bail in FIR Nos. 33/2009, 86/2010 and 203/2019. The Detaining Authority has also failed to disclose the compelling reasons for passing order of detention when the detenu was already in custody. The Detaining Authority has, thus, failed to show compelling reasons warranting the detention of the detenu under Section 8 of the J&K Public Safety Act.”
Most damningly, the Bench then minces no words to hold in para 7 that, “There is no response to the averment that the detenu was granted bail in FIR No. 33/2009, FIR No. 86/2010, FIR No. 203/2019 and acquitted in FIR No. 66/2003. The Detaining Authority was, thus, not alive to the situation and, thus, there was total non-application of mind by the Detaining Authority while passing the order of detention, as such, the impugned detention was vitiated.”
While citing the relevant case law, the Bench then mentions in para 8 that, “The Supreme Court in Anant Sakharam Raut and others V. State of Maharashtra and another, AIR 1987 SC 137, while considering similar proposition, it has been held that:“5……. the one contention strongly pressed before us by the petitioner’s counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in three cases. This indicates a total absence of application of mind on the part of the detaining authority while passing the order of detention.
“7……… that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the Judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith..……..””
Be it noted, the Bench then pointed out in para 9 that, “The detenu, it is next submitted, moved a representation on 12.07.2021 against his detention and the same is placed on the record, but it is apparent that this representation has not been considered till date. The detenu has a statutory right to make a representation against his detention to the respondents, who are under duty to consider the same.”
It is worth noting that the Bench then expounds in para 10 stating that, “Article 22(5) of the Constitution of India provides for specific protection to under trials and detainee. Article 22(5) of the Constitution of India reads as under:-“When any person is detained in pursuance of an order made under any law providing for preventive detention, the Authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and afford him an earliest opportunity of making a representation against the order, therefore, it casts a duty upon the Detaining Authority to communicate to the detenu the grounds on which the order is made and a corresponding right arising in him of making such representation against his detention.””
While citing yet another relevant case law, the Bench then states elaborately in para 11 that, “In ‘Sarabjeet Singh Mokha V. District Magistrate, Jabalpur and others,’ 2021 SCC Online SC 1019, it has been held that:“22. ……………….Article 22(5) reflects a keen awareness of the framers of the constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandates an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be dispose of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.””
Most significantly and so also most remarkably, the Bench then hastens to add in para 12 holding that, “The right to personal liberty is guaranteed and in order to curtail the freedom, there must be a cogent cause and strict adherence to the safeguards prescribed. The impugned detention order for the reasons stated is unsustainable in the eyes of law. The Detaining Authority has, thus, not considered the representation of the detenu till date and thus, there is violation of the valuable right of the detenu under Article 22(5) of the Constitution.”
As a corollary, the Bench then quite naturally went on to hold in para 13 that, “In view of the aforesaid discussion, the respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. This petition is, accordingly, allowed and impugned detention order No. 03/PSA of 2021 dated 16.06.2021 passed by District Magistrate, Samba is quashed. The detenu is directed to be released from preventive custody forthwith, if he is not required in connection with any other case.”
Furthermore, the Bench then stipulates in para 14 that, “Connected application, if any, shall also stands disposed of.”
Finally, the Bench then concludes by holding in para 15 that, “Record be returned.”
All told, the Jammu and Kashmir and Ladakh High Court thus we see is quite upfront to note that there must be cogent cause for detaining and strict adherence to constitutional safeguards is mandatory to curtail personal liberty. It thus merits no reiteration that all the courts in India must definitely adhere to what the Court has held in this case so very elegantly, eloquently and effectively. There can be certainly just no denying or disputing it. Sanjeev Sirohi