{"id":32035,"date":"2011-02-22T00:00:00","date_gmt":"2011-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-state-of-jk-and-others-on-22-february-2011"},"modified":"2015-11-23T15:28:19","modified_gmt":"2015-11-23T09:58:19","slug":"high-court-of-jammu-and-kashmir-at-vs-state-of-jk-and-others-on-22-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-state-of-jk-and-others-on-22-february-2011","title":{"rendered":"High Court Of Jammu And Kashmir At … vs State Of J&K And Others on 22 February, 2011"},"content":{"rendered":"
Jammu High Court<\/div>\n
High Court Of Jammu And Kashmir At … vs State Of J&K And Others on 22 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nHC(W) No. 31 OF 2010   \nDarshan Singh \nPetitioners\nState of J&K and others\nRespondent  \n!Mr. D. S. Saini, Advocate\n^Mr. Gagan Basotra, Addl. Advocate General \n\nHonble Mr. Justice Virender Singh, Judge\nDate: 22.02.2011 \n:J U D G M E N T: \n<\/pre>\n
Darshan Singh (hereinafter to be referred to as detenu
\nonly) and is presently confined in Central Jail, Kot Bhalwal,
\nJammu on the strength of Detention Order No.45\/PSA of 2010
\ndated 23.09.2010 slapped upon himself by respondent No.2
\n(District Magistrate, Jammu) has sought interim bail on medical
\ngrounds by placing on record a letter of Inspector General of
\nPolice (Prisons), J&K addressed to Deputy Secretary to
\nGovernment, (Chief Ministers Secretariat) J&K informing that as
\nper the opinion of the medical board, he (Darshan Singh) is
\nsuffering from advance Cirrhosis with presence of jaundice,
\nascites with history of bleeding and encephalopathy and such like
\npatients are always on edge and their overall survival is poor.
\nThe said prayer is not acceded to. However, the main petition is
\ntaken on board for its disposal being Habeas Corpus petition,
\nwhich otherwise is to be given priority. Mr. Basotra, learned
\nAddl. Advocate General is also in possession of the entire record
\nfor the perusal of the Court.\n<\/p>\n
2<\/span><\/p>\n
Heard learned counsel for both the sides. Detention
\nrecord produced by Mr. Basotra is also perused.
\nGrounds of detention, which are made the basis for
\npassing of the impugned detention order, read thus:-
\n Whereas, the Senior Superintendent of Police,
\nJammu vide his letter No.31642-43 dated 17.08.2010
\nhas submitted a dossier (copy enclosed) wherein, it has
\nbeen reported that you, Darshan Singh S\/o Ajit Singh
\nalias Nazi R\/o village Nari Tehsil R. S. Pura District
\nJammu are an incorrigible cross border activist having
\nindulged in cross border smuggling repeatedly at the
\nbehest of Pak based Sikh militants. You had been
\narrested in 08 criminal cases and sent to JIC a number
\nof times and were earlier detained under Public Safety
\nAct. But despite actions taken under substantive Acts
\nyou did not mend your criminal ways. As latest as last
\nyear you had again indulged in cross border activities
\nwhich had been proved in the investigation of case FIR
\nNo.01\/2010 U\/S 20 Unlawful Activities Act, 120-
\nB\/RPC, 3\/25 A. Act 3\/ 4 PSSA, 4\/5 ESA P\/S R. S.
\nPura.\n<\/p>\n
Whereas, it has also been reported that on
\n13.07.1984, a Police party seized 500 ltrs. of Lahan
\nfrom the fields of one Chain Singh at Nari which was
\nkept in 05 barrels which was damaged on spot and
\nsome empty barrels and other material was also seized
\nnear Bhathi from the fields of Chain Singh and Ajit
\nSingh alias Nazi some barrels also were seized from
\ntheir houses and seized material was taken towards
\nPolice Station, but at the way you along with your
\nfather and other associates attacked on the Police party
\nand started firing. A number of persons and your
\nrelatives were with you. The Police party escaped from
\nthere with great difficulty. On this, case FIR No.
\n245\/1984 U\/S 353\/148\/149\/341\/109\/RPC 4\/25 A.\n<\/p>\n
3<\/span><\/p>\n
Act was registered against you in Police Station, R. S.
\nPura (copy of FIR is enclosed).\n<\/p>\n
Whereas, it has also been further reported that
\non 14.07.1984, you alongwith your associates attacked
\non one Lal Chand S\/o Dhondu Ram Caste Sahni with
\nswords, Tokas and Rifle. On this, case FIR No.
\n248\/1984 U\/S 148\/149\/452\/RPC, 3\/25 and 4\/27 A.
\nAct was registered against you in Police Station R. S.
\nPura (copy of FIR is enclosed).\n<\/p>\n
Whereas, it has also been reported that on
\n04.02.1985, you and your associates attacked on one
\nLal Chand S\/o Dhondu Ram R\/o Kher with axes and
\nPistols but he managed to escape. On this, case FIR
\nNo.39\/1985 U\/S 307\/148\/149\/RPC was registered
\nagainst you in Police Station R. S. Pura (Copy of FIR is
\nenclosed).\n<\/p>\n
Whereas, it has also been further reported that
\non 04.07.1985 the case FIR No. 40\/1985 U\/S
\n457\/342\/323\/RPC was registered against you in Police
\nStation R. S. Pura and challenged in the court of JMIC
\nR. S. Pura on 07.11.1985 against you and your
\nassociate.\n<\/p>\n
Whereas, it has also been reported that on
\n11.05.1985, you and your associates attacked on one
\nHari Ram S\/o Shankar Dass Caste Bhagat R\/o Kher
\nhaving Tokas and Rifles with you. You fired upon him
\nand injured him. In instant case FIR No. 146\/1985
\nU\/S 307\/148\/149\/RPC 3\/25 A. Act was registered
\nagainst you in Police Station R. S. Pura (copy of FIR is
\nenclosed).\n<\/p>\n
Whereas, it has also been further reported that
\non 03.01.1994, you were arrested by a Police party with
\na Desi Katta alongwith 05 rounds of 303 at Keer Pind
\npully. On this, case FIR No. 04\/1994 U\/S 3\/25 A. Act
\nstands registered against you in Police Station R. S.
\nPura (copy of FIR is enclosed).\n<\/p>\n
4<\/span><\/p>\n
Whereas, it has also been reported that you
\nalongwith two associates were arrested by Naka party
\nof 05 JAK Rifles at International border in R. S. Pura
\nsector during the night of 06\/07.02.1991 while you
\ncrossed over the border from Pakistan. You fired upon
\nthe Army personnel at the Naka. You along with your
\n02 associates were arrested and Arms\/ Ammunition
\nwas recovered from your possession. Accordingly, a
\ncase FIR No.37\/1991 U\/S 3\/ 4 TADA was registered
\nagainst you in Police Station R. S. Pura (copy of FIR is
\nenclosed).\n<\/p>\n
Whereas, it has also been further reported that
\non 08.04.1994, you along with your associate attacked
\non one Krishan Lal S\/o Inder Ram R\/o Nari with
\nswords and revolve. On this, case FIR No. 89\/1994
\nU\/S 147\/148\/307\/149\/341\/325\/RPC, 3\/25 A. Act
\nwas registered against you in Police Station R. S. Pura (
\ncopy of FIR is enclose).\n<\/p>\n
Whereas, it has been further reported that during
\ncourse of investigation in case FIR No. 01\/2010 U\/S
\n4\/5 ESA, > PSSA, 3\/25 A. Act, 120-B\/RPC, 20
\nUnlawful Activity Act P\/S R. S. Pura (copy of FIR
\nenclosed) and the interrogation of co accused namely
\nSatnam Singh alias Tiny S\/o Prab Dayal R\/o
\nKapoorpur Tehsil R. S. Pura (2) Parvesh Kumar S\/o
\nBehari Lal R\/o Kapoorpur reveals that you had
\nmotivated the above said 02 accused and had been
\ninstrumental in retrieving at least 02 consignments
\nfrom Indo-Pak border in R.S. Pura sector. The
\nconsignment consisting of Pistols, RDX, fake currency ,
\nGenuine Indian currency, 02 Pak sim cards has been
\nretrieved and distributed among antinational elements\/
\nanti social elements. The character of the contraband
\nreveals that the same is being utilized in antinational
\nactivities.\n<\/p>\n
Whereas, in view of the above mentioned facts,
\ncircumstances consideration as well as your activities,
\n5<\/span>
\nit is evident that you are continuously indulging in
\ncriminal activities of cross border smuggling of arms
\nand ammunition, explosive substances, contraband
\nmaterial being utilized in antinational activities. Since,
\nthe action taken against you under the substantive
\nlaws have proved futile in deterring you from indulging
\nin continuous criminal acts. You were earlier detained
\nunder Public Safety Act, but you had failed to mend
\nyour criminal activities. Thus, your remaining at large
\nis constant threat to the security of the State and
\ninvolves great risk to the nation. As such, in order to
\nprevent you from further indulging in such activities,
\nwhich are highly prejudicial and detrimental to the
\nsecurity of the State, it has become necessary to detain
\nyou under preventive measure. Therefore, you
\nDarshan Singh S\/o Ajit Singh alias Nazi R\/o village
\nNari, Tehsil R. S. Pura, District Jammu, are hereby
\nordered to be detained under the provisions of J&K
\nPublic Safety Act, 1978.
\nMr. Saini submits that the impugned Detention Order
\nsans application of mind and has been passed in a mechanical
\nmanner without appreciating the entire facts. According to him,
\nthe detenu was arrested on 25.09.2010 from his residence,
\ndetained and then put in the jail. He was shifted to Government
\nMedical College on 27.09.2010 for medical treatment of his
\nacute liver problem, where he remained admitted for about two
\nweeks. With this ailment the detenu could not involve himself in
\nthe activity as projected in F.I.R. No.01\/2010. He then submits
\nthat although respondent No.3 had furnished the detenu the
\nmaterial (photo-stat copy of the F.I.R.s relating to previous
\nyears) in the jail, but was not supplied with the complete
\nmaterial of the present case (F.I.R. No. 01 of 2010) and,
\n6<\/span>
\ntherefore, deprived him of making an effective representation to
\nthe Government guaranteed under Article 22(5) of the
\nConstitution of India. Thus, a valuable right has been snatched
\nfrom him.\n<\/p>\n
May be the detention order is sought to be quashed on
\nother pleas also taken in the main petition, but Mr. Saini has
\nmainly laid stress on the aforesaid two grounds.
\nHe lastly submits that the detenu is on his death bed as is
\nclear from letter of IGP (Prisons) referred to hereinabove and that
\naspect may also be considered sympathetically.
\nPer contra, Mr. Basotra submits that the petitioner is
\ndetained on the basis of a very serious allegations against him
\nas he is one, who is instigating others to indulge in criminal
\nactivities across the border by smuggling arms and ammunition.
\nMr. Basotra further submits that in F.I.R. No. 01 of 2010
\nregistered at Police Station R. S. Pura under Section 4\/5 ESA,
\n3\/4 PSSA, 3\/25 Arms Act, 120-B RPC and 20 of Unlawful
\nActivities Act, two persons namely Satnam Singh alias Tiny and
\nParvesh Kumar (both residents of Kapoorpur Tehsil R. S. Pura)
\nwere arrested and interrogated and, during interrrogation they
\ndisclosed that Darshan Singh (detenu) was instrumental in
\ngetting the consignment of arms and ammunition from Indo-Pak
\nborder. After his name was disclosed by those two persons,
\nDistrict Magistrate Jammu, in order to prevent further any such
\nlike activities which could prove prejudicial and detrimental to
\nthe security of the State, thought of detaining the detenu under
\nJ&K Public Safety Act, 1978. He goes on to submit that it was
\nthe subjective satisfaction of the District Magistrate, which
\n7<\/span>
\nshould not normally be made the subject matter of review by
\nthis Court except under exceptional circumstances.
\nLearned State counsel further submits that Satnam Singh
\nand Parvesh Kumar are not only arrested in the aforesaid F.I.R.
\nfor substantive offences, but have also been detained under
\nPublic Safety Act by District Magistrate, Jammu and their
\npetitions are also pending in this Court. The present detenu
\nwas not arrested in the aforesaid F.I.R. as he was not keeping
\ngood health and has been detained through the present
\ndetention order only, that too as a preventive measure.
\nNo doubt, if one looks at the allegations only, prima facie,
\nthey appear to be quite serious in nature. But when the entire
\ncase is tested on the touchstone of reasoning and from other
\nlegal aspects also, the detention order deserves to be quashed. I
\nwould now delve deep into reasoning.\n<\/p>\n
Perusal of major portion of the grounds of detention
\nreflects the involvement of detenu in different case for
\nsubstantive offences start from July, 1984 and ending April,
\n1994. The flashback of the cases is for ten years. In all these
\ncases, the detenu has either earned acquittal or is on bail, as is
\nstated by Mr. Saini and admitted by Mr. Basotra. However, one
\nfact is very clear that he was not in custody in any of the cases
\nmentioned hereinabove when the detention order was slapped
\nupon him in October, 2010. So from all these facts, it can be
\ncomfortably said that the live link of any of the activities
\nattributable to the detenu prejudicial to the security of the State
\nis snapped as admittedly for long sixteen years, the State had no
\nmaterial against him at all. This all is borne out from the
\n8<\/span>
\ndossier itself and the State cannot get out of it. It is only in
\nJanuary, 2010 that the detenu is shown to be active once again
\nby indulging into all the nefarious activities detrimental to the
\nsecurity of the State compelling for his detention under Public
\nSafety Act. This does not stand the test of reasoning.
\nLet us examine the present case, yet from another angle.
\nAdmittedly, the detenu is not arrested in the aforesaid F.I.R. No.
\n01 of 2010 and other two persons namely Satnam Singh and
\nParvesh Kumar were arrested. Case of the State is that during
\ninterrogation, they revealed that the consignment consisting
\ncertain arms and ammunition including some fake currency,
\ncame to their possession through the detenu. The words used
\nare that he was instrumental in retrieving two consignments. It
\ncan not be read against Darshan Singh-detenu as he has not
\nshown to be the co-accused of aforesaid Satnam Singh and
\nParvesh Kumar. Even if he would have been arrested in the
\nforesaid case on the basis of the said piece of evidence, still it
\ncould not be legally read against him being a statement of
\naccused against co-accused. In the grounds of detention, it is
\nsaid that on interrogation of aforesaid two co-accused, they
\nrevealed that the detenu had motivated them for that
\nconsignment. In that eventuality, the prosecution could arrest
\nhim with the aid of Section 120-B RPC, which is otherwise
\ninserted in the F.I.R., but that is not the position. The
\nexplanation given by Mr. Basotra is that he was not arrested on
\naccount of his bad health as he is suffering from liver and
\nkidney disorder, does not appeal to the Court at all being
\nwithout any basis. If he could be arrested\/detained under Public
\n9<\/span>
\nSafety Act, it is not understandable, why he could not be
\narrested in the aforesaid F.I.R. for substantive offences.
\nSympathy has no place in such type of cases. In any case, the
\naforesaid material collected by the State does not lead anywhere,
\nwhen tested on legal anvil. It appears that the District
\nMagistrate, without applying his mind to the entirety of facts
\nand circumstances, has just put his seal on the dossier placed
\nbefore him. It is not expected of a detaining authority. A heavy
\nduty is cast upon District Magistrate to peruse the entire record
\nbefore arriving at subjective satisfaction. This exercise is not a
\nsheer formality, which is to be carried out in a casual manner.
\nAfter all, liberty of an individual guaranteed under Constitution
\nof India is going to be curtailed by an order of detention.
\nI am conscious of the settled legal position that normally
\nthis Court should not sit as a Court of Appeal to minutely
\nrescan the entire process on the basis of which District
\nMagistrate has arrived at the conclusion on the basis of his
\nsubjective satisfaction. But that does not mean that even if the
\ndetention order speaks volumes of non-application of mind, still
\nthe Court would not show its indulgence and sit like a silent
\nspectator. Undoubtedly, if the detention order is inherently
\nweak and lacks application of mind, it would certainly fall into
\nthe scope of judicial review to hold it unsustainable. The
\npresent case, in my view, is of that type only.
\nLet us now advert to another vital aspect with regard to
\nnon-supply of relevant material to the detenu enabling him to
\nmake an effective representation. So far as supplying of material
\nwith regard to earlier F.I.R.s, the case set up by the detenu
\n10<\/span>
\nhimself is that it was supplied to him in the jail. That by itself,
\nwould not absolve the detaining authority of its responsibility.
\nIn fact, the starting point is registration of F.I.R. No. 01 of 2010,
\nin which his involvement is shown after aforesaid two persons
\n(Satnam Singh and Parvesh Kumar) were interrogated. So the
\nentire material including their statements recorded during
\ninvestigation, should have been supplied to the detenu so as to
\nenable him to make an effective representation to put forth his
\ncase in his defence. Admittedly, the relevant material to case
\nF.I.R. No.01\/2010 has not been supplied to him. This exercise
\nis again not a sheer formality and it has its far reaching effect.
\nRepresentation means a meaningful representation as it can
\nturn out to be a good ground for revoking or rescinding the
\ndetention order at any stage under Section 19 of the Act. The
\nrepresentation, if made, is always subject to consideration by
\nAdvisory Board as provided in Section 15 of the Act. Therefore,
\nit has its effect depending upon the facts of a particular case.
\nDetention order has to pass through different stages before it is
\nconfirmed for a particular period. Therefore, non-supply of the
\nrelevant material to the detenu will not only cause prejudice to
\nhim, he is also deprived of his constitutional right and that by
\nitself can be a good ground for quashing the detention order.
\nThe present case is suffering from this vital flaw also.
\nI would like to make it clear that although Mr. Saini has
\nmade an attempt to seek relief of quashment projecting that the
\ndetenu is on his death bed on account of chronic ailments, but
\nthat aspect can not be considered on merits. However, on the
\nstrength of two vital weaknesses discussed hereinabove, in my
\n11<\/span>
\nconsidered view, the detention order impugned herein cannot
\nsustain in the eye of law and as such, deserves to be quashed.
\nIt is made clear that whatever is expressed herein shall
\nnot be construed as expression of opinion in other two Habeas
\nCorpus petitions filed by aforesaid Satnam Singh and Parvesh
\nKumar as the case at hand has been decided on its own
\nindividual merits.\n<\/p>\n
The net result is that the petition at hand is allowed. The
\nDetention Order No.45\/PSA of 2010 dated 23.09.2010 is hereby
\nquashed. Person of Darshan Singh S\/o Late Sh. Ajeet Singh
\nR\/o Village Nari, Tehsil R. S. Pura, District Jammu, is ordered to
\nbe set free forthwith, if not required in any other case. Registrar
\nJudicial to take immediate steps in this regard by informing the
\nauthority concerned.\n<\/p>\n
Detention record retained be returned to Mr. Basotra
\nforthwith by the Registry against proper receipt.
\n( Virender Singh )
\nJudge
\nJAMMU
\n22.02.2011
\nNarinder<\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court High Court Of Jammu And Kashmir At … vs State Of J&K And Others on 22 February, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-32035","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nHigh Court Of Jammu And Kashmir At ... vs State Of J&K And Others on 22 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-state-of-jk-and-others-on-22-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"High Court Of Jammu And Kashmir At ... vs State Of J&K And Others on 22 February, 2011 - 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