Serial No. 05 Regular List HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR [CASE NUMBER] Date of decision:19-04-2019 [ENTITY] Vs. [ENTITY] and anr. Coram: Hon'ble Mr. Justice [ENTITY], Judge. Appearance: For the Petitioner(s) : Mr. [ENTITY], Adv. For the Respondent(s) : Mr. [ENTITY], Dy. AG.
i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No
1. Challenge is thrown to the Order No. 13/DMB/PSA of 2018 dated 31.08.2018 passed by the District Magistrate, Bandipora- respondent No. 2 whereby [ENTITY] son of [ENTITY] resident of Par Mohalla Hajin, District Bandipora (for short "detenu"), has been placed under preventive detention, on the grounds set out in the petition in hand.
2. The respondents have filed their counter affidavit wherein they have vehemently denied the allegations/grounds raised in the petition. Learned Dy. AG has produced the detention records so as to lend support to the stand taken in the counter affidavit.
3. Heard learned counsel for the parties and also perused the detention records.
4. Learned counsel for the petitioner submits that the allegations levelled in the grounds of detention are vague and misconceived. The detenu was not provided the material, place before the detaining authority for arriving at the subjective satisfaction and, therefore, the detenu was prevented to make an effective representation, which amounts to infraction of provisions of [SECTION] of the [ACT], read with [SECTION] of the [ACT]. His further submission is that the detenu had earlier moved a Habeas Corpus Petition under [CASE NUMBER] which was allowed by a Coordinate Bench of this Court vide judgments dated 29.05.2018 and the detenue was directed to be released forthwith. However, detenu was not released but subsequently a fresh detention Order No.13/DMB/PSA of 2018 dated 31.08.2018 was passed. His further submission is that once the earlier order of detention was quashed by this court, respondents could not have issued another order of detention unless there was any fresh activity. In the instant case, there was no fresh allegations agents the detenue after the earlier order was quashed therefore issuance of fresh order of detention is itself bad in law. He further submits that the detenue was already in custody in case FIR No. 58/2014 for the commission of offence under [SECTION] [ACT]. The detenue has neither applied for bail nor bail was otherwise granted to him. The detaining authority despite having the knowledge of the fact that the detenue was already in custody has not spelled out the compelling reason to pass the impugned preventive detention order against the detenue if he is already in custody. His further submission is that the detenue was accused in case FIR No. [SECTION]/2017 wherein bail application moved by the detenue was rejected on 12.07.2018. His further submission is that the detenue is illiterate and cannot understand the English language but the order of detention is in English and no translated script in Kashmiri or Urdu language was furnished to the detenue nor was the grounds of detention read over and explained to him in the language he understands so that he can make effective representation. So, on this count too detention order suffers from ambiguity. He further submits that relevant material like copy of dossier, FIR, Statement under [SECTION], [SECTION] [ACT], seizure memo of the case mentioned in the grounds of detention has been provided to detenue to enable him to make effective representation. For this reason, there were no compelling reasons to pass the detention order against the detenue and accordingly on this ground as well the detention order deserves to be quashed. Learned counsel for the petitioner has relief on various judgment of the Hon'ble Supreme Court in [ENTITY] Vs. District Magistrate Dhanbad, Bihar and Ors, (1984) 4 SCC 416 and [PRECEDENT].
5. In countering the arguments of the learned counsel for the petitioner, learned counsel for the respondents contends that for justifiable reasons an order for detention could be made in respect of a person who is in custody and that in the instant case all the technical requirements have been complied with, more particularly as required under the Act of 1978, which provides that earliest opportunity of making a representation be provided to detenu. Learned counsel for the respondents further submits that the detention order of the detenue has been extended for a further period of three months.
6. The question of personal liberty of a person is sacrosanct and the State Authority cannot be permitted to take it away without following the procedure prescribed by the law, otherwise it would be violative of the fundamental rights guaranteed under [SECTION] and [SECTION] of the [ACT]. The law of the preventive detention could be described as a "jurisdiction of suspicion" and the compulsion of values of freedom of the democratic society and of the societal order sometimes might compel a curtailment of individual's liberty. Be that as it may, the personal liberty of an individual is the most precious and prized right guaranteed under the [ACT] in [SECTION] thereof. The State has been granted the power to curb such rights under the criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are, by any means, prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. [ [PRECEDENT]; [PRECEDENT]].
7. There is a legal positon in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of an offence under substantive law allegedly committed by him, is well settled. Normally preventive detention of such a person should not be ordered. In the [ENTITY]'s case, Hon'ble Supreme Court has held that "if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised." The Supreme Court quoted with approval the observation made in [PRECEDENT], emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues. The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B. K. Jha and anr. (1987) 2 SCC [SECTION], the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.
8. For the foregoing reasons the petition is disposed of and the detention Order No.13/DMB/PSA of 2018 dated 31-08-2018 passed by the District Magistrate, Bandipora- respondent No. 2 is quashed. The respondents are directed to release the detenue from the preventive custody forthwith, provided he is not required in any other case.
9. Registry to return the detention record to the learned counsel for the respondents.
([ENTITY]) Judge [ENTITY] 19-04-2019 "[ENTITY]" PS"