HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. HC(W) No. 31 OF 2010 Darshan Singh Petitioners State of J&K and others Respondent !Mr. D. S. Saini, Advocate ^Mr. Gagan Basotra, Addl. Advocate General Honble Mr. Justice Virender Singh, Judge Date: 22.02.2011 :J U D G M E N T:
Darshan Singh (hereinafter to be referred to as detenu
only) and is presently confined in Central Jail, Kot Bhalwal,
Jammu on the strength of Detention Order No.45/PSA of 2010
dated 23.09.2010 slapped upon himself by respondent No.2
(District Magistrate, Jammu) has sought interim bail on medical
grounds by placing on record a letter of Inspector General of
Police (Prisons), J&K addressed to Deputy Secretary to
Government, (Chief Ministers Secretariat) J&K informing that as
per the opinion of the medical board, he (Darshan Singh) is
suffering from advance Cirrhosis with presence of jaundice,
ascites with history of bleeding and encephalopathy and such like
patients are always on edge and their overall survival is poor.
The said prayer is not acceded to. However, the main petition is
taken on board for its disposal being Habeas Corpus petition,
which otherwise is to be given priority. Mr. Basotra, learned
Addl. Advocate General is also in possession of the entire record
for the perusal of the Court.
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Heard learned counsel for both the sides. Detention
record produced by Mr. Basotra is also perused.
Grounds of detention, which are made the basis for
passing of the impugned detention order, read thus:-
Whereas, the Senior Superintendent of Police,
Jammu vide his letter No.31642-43 dated 17.08.2010
has submitted a dossier (copy enclosed) wherein, it has
been reported that you, Darshan Singh S/o Ajit Singh
alias Nazi R/o village Nari Tehsil R. S. Pura District
Jammu are an incorrigible cross border activist having
indulged in cross border smuggling repeatedly at the
behest of Pak based Sikh militants. You had been
arrested in 08 criminal cases and sent to JIC a number
of times and were earlier detained under Public Safety
Act. But despite actions taken under substantive Acts
you did not mend your criminal ways. As latest as last
year you had again indulged in cross border activities
which had been proved in the investigation of case FIR
No.01/2010 U/S 20 Unlawful Activities Act, 120-
B/RPC, 3/25 A. Act 3/ 4 PSSA, 4/5 ESA P/S R. S.
Pura.
Whereas, it has also been reported that on
13.07.1984, a Police party seized 500 ltrs. of Lahan
from the fields of one Chain Singh at Nari which was
kept in 05 barrels which was damaged on spot and
some empty barrels and other material was also seized
near Bhathi from the fields of Chain Singh and Ajit
Singh alias Nazi some barrels also were seized from
their houses and seized material was taken towards
Police Station, but at the way you along with your
father and other associates attacked on the Police party
and started firing. A number of persons and your
relatives were with you. The Police party escaped from
there with great difficulty. On this, case FIR No.
245/1984 U/S 353/148/149/341/109/RPC 4/25 A.
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Act was registered against you in Police Station, R. S.
Pura (copy of FIR is enclosed).
Whereas, it has also been further reported that
on 14.07.1984, you alongwith your associates attacked
on one Lal Chand S/o Dhondu Ram Caste Sahni with
swords, Tokas and Rifle. On this, case FIR No.
248/1984 U/S 148/149/452/RPC, 3/25 and 4/27 A.
Act was registered against you in Police Station R. S.
Pura (copy of FIR is enclosed).
Whereas, it has also been reported that on
04.02.1985, you and your associates attacked on one
Lal Chand S/o Dhondu Ram R/o Kher with axes and
Pistols but he managed to escape. On this, case FIR
No.39/1985 U/S 307/148/149/RPC was registered
against you in Police Station R. S. Pura (Copy of FIR is
enclosed).
Whereas, it has also been further reported that
on 04.07.1985 the case FIR No. 40/1985 U/S
457/342/323/RPC was registered against you in Police
Station R. S. Pura and challenged in the court of JMIC
R. S. Pura on 07.11.1985 against you and your
associate.
Whereas, it has also been reported that on
11.05.1985, you and your associates attacked on one
Hari Ram S/o Shankar Dass Caste Bhagat R/o Kher
having Tokas and Rifles with you. You fired upon him
and injured him. In instant case FIR No. 146/1985
U/S 307/148/149/RPC 3/25 A. Act was registered
against you in Police Station R. S. Pura (copy of FIR is
enclosed).
Whereas, it has also been further reported that
on 03.01.1994, you were arrested by a Police party with
a Desi Katta alongwith 05 rounds of 303 at Keer Pind
pully. On this, case FIR No. 04/1994 U/S 3/25 A. Act
stands registered against you in Police Station R. S.
Pura (copy of FIR is enclosed).
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Whereas, it has also been reported that you
alongwith two associates were arrested by Naka party
of 05 JAK Rifles at International border in R. S. Pura
sector during the night of 06/07.02.1991 while you
crossed over the border from Pakistan. You fired upon
the Army personnel at the Naka. You along with your
02 associates were arrested and Arms/ Ammunition
was recovered from your possession. Accordingly, a
case FIR No.37/1991 U/S 3/ 4 TADA was registered
against you in Police Station R. S. Pura (copy of FIR is
enclosed).
Whereas, it has also been further reported that
on 08.04.1994, you along with your associate attacked
on one Krishan Lal S/o Inder Ram R/o Nari with
swords and revolve. On this, case FIR No. 89/1994
U/S 147/148/307/149/341/325/RPC, 3/25 A. Act
was registered against you in Police Station R. S. Pura (
copy of FIR is enclose).
Whereas, it has been further reported that during
course of investigation in case FIR No. 01/2010 U/S
4/5 ESA, > PSSA, 3/25 A. Act, 120-B/RPC, 20
Unlawful Activity Act P/S R. S. Pura (copy of FIR
enclosed) and the interrogation of co accused namely
Satnam Singh alias Tiny S/o Prab Dayal R/o
Kapoorpur Tehsil R. S. Pura (2) Parvesh Kumar S/o
Behari Lal R/o Kapoorpur reveals that you had
motivated the above said 02 accused and had been
instrumental in retrieving at least 02 consignments
from Indo-Pak border in R.S. Pura sector. The
consignment consisting of Pistols, RDX, fake currency ,
Genuine Indian currency, 02 Pak sim cards has been
retrieved and distributed among antinational elements/
anti social elements. The character of the contraband
reveals that the same is being utilized in antinational
activities.
Whereas, in view of the above mentioned facts,
circumstances consideration as well as your activities,
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it is evident that you are continuously indulging in
criminal activities of cross border smuggling of arms
and ammunition, explosive substances, contraband
material being utilized in antinational activities. Since,
the action taken against you under the substantive
laws have proved futile in deterring you from indulging
in continuous criminal acts. You were earlier detained
under Public Safety Act, but you had failed to mend
your criminal activities. Thus, your remaining at large
is constant threat to the security of the State and
involves great risk to the nation. As such, in order to
prevent you from further indulging in such activities,
which are highly prejudicial and detrimental to the
security of the State, it has become necessary to detain
you under preventive measure. Therefore, you
Darshan Singh S/o Ajit Singh alias Nazi R/o village
Nari, Tehsil R. S. Pura, District Jammu, are hereby
ordered to be detained under the provisions of J&K
Public Safety Act, 1978.
Mr. Saini submits that the impugned Detention Order
sans application of mind and has been passed in a mechanical
manner without appreciating the entire facts. According to him,
the detenu was arrested on 25.09.2010 from his residence,
detained and then put in the jail. He was shifted to Government
Medical College on 27.09.2010 for medical treatment of his
acute liver problem, where he remained admitted for about two
weeks. With this ailment the detenu could not involve himself in
the activity as projected in F.I.R. No.01/2010. He then submits
that although respondent No.3 had furnished the detenu the
material (photo-stat copy of the F.I.R.s relating to previous
years) in the jail, but was not supplied with the complete
material of the present case (F.I.R. No. 01 of 2010) and,
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therefore, deprived him of making an effective representation to
the Government guaranteed under Article 22(5) of the
Constitution of India. Thus, a valuable right has been snatched
from him.
May be the detention order is sought to be quashed on
other pleas also taken in the main petition, but Mr. Saini has
mainly laid stress on the aforesaid two grounds.
He lastly submits that the detenu is on his death bed as is
clear from letter of IGP (Prisons) referred to hereinabove and that
aspect may also be considered sympathetically.
Per contra, Mr. Basotra submits that the petitioner is
detained on the basis of a very serious allegations against him
as he is one, who is instigating others to indulge in criminal
activities across the border by smuggling arms and ammunition.
Mr. Basotra further submits that in F.I.R. No. 01 of 2010
registered at Police Station R. S. Pura under Section 4/5 ESA,
3/4 PSSA, 3/25 Arms Act, 120-B RPC and 20 of Unlawful
Activities Act, two persons namely Satnam Singh alias Tiny and
Parvesh Kumar (both residents of Kapoorpur Tehsil R. S. Pura)
were arrested and interrogated and, during interrrogation they
disclosed that Darshan Singh (detenu) was instrumental in
getting the consignment of arms and ammunition from Indo-Pak
border. After his name was disclosed by those two persons,
District Magistrate Jammu, in order to prevent further any such
like activities which could prove prejudicial and detrimental to
the security of the State, thought of detaining the detenu under
J&K Public Safety Act, 1978. He goes on to submit that it was
the subjective satisfaction of the District Magistrate, which
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should not normally be made the subject matter of review by
this Court except under exceptional circumstances.
Learned State counsel further submits that Satnam Singh
and Parvesh Kumar are not only arrested in the aforesaid F.I.R.
for substantive offences, but have also been detained under
Public Safety Act by District Magistrate, Jammu and their
petitions are also pending in this Court. The present detenu
was not arrested in the aforesaid F.I.R. as he was not keeping
good health and has been detained through the present
detention order only, that too as a preventive measure.
No doubt, if one looks at the allegations only, prima facie,
they appear to be quite serious in nature. But when the entire
case is tested on the touchstone of reasoning and from other
legal aspects also, the detention order deserves to be quashed. I
would now delve deep into reasoning.
Perusal of major portion of the grounds of detention
reflects the involvement of detenu in different case for
substantive offences start from July, 1984 and ending April,
1994. The flashback of the cases is for ten years. In all these
cases, the detenu has either earned acquittal or is on bail, as is
stated by Mr. Saini and admitted by Mr. Basotra. However, one
fact is very clear that he was not in custody in any of the cases
mentioned hereinabove when the detention order was slapped
upon him in October, 2010. So from all these facts, it can be
comfortably said that the live link of any of the activities
attributable to the detenu prejudicial to the security of the State
is snapped as admittedly for long sixteen years, the State had no
material against him at all. This all is borne out from the
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dossier itself and the State cannot get out of it. It is only in
January, 2010 that the detenu is shown to be active once again
by indulging into all the nefarious activities detrimental to the
security of the State compelling for his detention under Public
Safety Act. This does not stand the test of reasoning.
Let us examine the present case, yet from another angle.
Admittedly, the detenu is not arrested in the aforesaid F.I.R. No.
01 of 2010 and other two persons namely Satnam Singh and
Parvesh Kumar were arrested. Case of the State is that during
interrogation, they revealed that the consignment consisting
certain arms and ammunition including some fake currency,
came to their possession through the detenu. The words used
are that he was instrumental in retrieving two consignments. It
can not be read against Darshan Singh-detenu as he has not
shown to be the co-accused of aforesaid Satnam Singh and
Parvesh Kumar. Even if he would have been arrested in the
foresaid case on the basis of the said piece of evidence, still it
could not be legally read against him being a statement of
accused against co-accused. In the grounds of detention, it is
said that on interrogation of aforesaid two co-accused, they
revealed that the detenu had motivated them for that
consignment. In that eventuality, the prosecution could arrest
him with the aid of Section 120-B RPC, which is otherwise
inserted in the F.I.R., but that is not the position. The
explanation given by Mr. Basotra is that he was not arrested on
account of his bad health as he is suffering from liver and
kidney disorder, does not appeal to the Court at all being
without any basis. If he could be arrested/detained under Public
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Safety Act, it is not understandable, why he could not be
arrested in the aforesaid F.I.R. for substantive offences.
Sympathy has no place in such type of cases. In any case, the
aforesaid material collected by the State does not lead anywhere,
when tested on legal anvil. It appears that the District
Magistrate, without applying his mind to the entirety of facts
and circumstances, has just put his seal on the dossier placed
before him. It is not expected of a detaining authority. A heavy
duty is cast upon District Magistrate to peruse the entire record
before arriving at subjective satisfaction. This exercise is not a
sheer formality, which is to be carried out in a casual manner.
After all, liberty of an individual guaranteed under Constitution
of India is going to be curtailed by an order of detention.
I am conscious of the settled legal position that normally
this Court should not sit as a Court of Appeal to minutely
rescan the entire process on the basis of which District
Magistrate has arrived at the conclusion on the basis of his
subjective satisfaction. But that does not mean that even if the
detention order speaks volumes of non-application of mind, still
the Court would not show its indulgence and sit like a silent
spectator. Undoubtedly, if the detention order is inherently
weak and lacks application of mind, it would certainly fall into
the scope of judicial review to hold it unsustainable. The
present case, in my view, is of that type only.
Let us now advert to another vital aspect with regard to
non-supply of relevant material to the detenu enabling him to
make an effective representation. So far as supplying of material
with regard to earlier F.I.R.s, the case set up by the detenu
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himself is that it was supplied to him in the jail. That by itself,
would not absolve the detaining authority of its responsibility.
In fact, the starting point is registration of F.I.R. No. 01 of 2010,
in which his involvement is shown after aforesaid two persons
(Satnam Singh and Parvesh Kumar) were interrogated. So the
entire material including their statements recorded during
investigation, should have been supplied to the detenu so as to
enable him to make an effective representation to put forth his
case in his defence. Admittedly, the relevant material to case
F.I.R. No.01/2010 has not been supplied to him. This exercise
is again not a sheer formality and it has its far reaching effect.
Representation means a meaningful representation as it can
turn out to be a good ground for revoking or rescinding the
detention order at any stage under Section 19 of the Act. The
representation, if made, is always subject to consideration by
Advisory Board as provided in Section 15 of the Act. Therefore,
it has its effect depending upon the facts of a particular case.
Detention order has to pass through different stages before it is
confirmed for a particular period. Therefore, non-supply of the
relevant material to the detenu will not only cause prejudice to
him, he is also deprived of his constitutional right and that by
itself can be a good ground for quashing the detention order.
The present case is suffering from this vital flaw also.
I would like to make it clear that although Mr. Saini has
made an attempt to seek relief of quashment projecting that the
detenu is on his death bed on account of chronic ailments, but
that aspect can not be considered on merits. However, on the
strength of two vital weaknesses discussed hereinabove, in my
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considered view, the detention order impugned herein cannot
sustain in the eye of law and as such, deserves to be quashed.
It is made clear that whatever is expressed herein shall
not be construed as expression of opinion in other two Habeas
Corpus petitions filed by aforesaid Satnam Singh and Parvesh
Kumar as the case at hand has been decided on its own
individual merits.
The net result is that the petition at hand is allowed. The
Detention Order No.45/PSA of 2010 dated 23.09.2010 is hereby
quashed. Person of Darshan Singh S/o Late Sh. Ajeet Singh
R/o Village Nari, Tehsil R. S. Pura, District Jammu, is ordered to
be set free forthwith, if not required in any other case. Registrar
Judicial to take immediate steps in this regard by informing the
authority concerned.
Detention record retained be returned to Mr. Basotra
forthwith by the Registry against proper receipt.
( Virender Singh )
Judge
JAMMU
22.02.2011
Narinder