Jammu & Kashmir High Court
Raj Ali Son Of Benia Amin Resident Of … vs Union Territory Of J&K & And Ors on 20 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 122/2024
Reserved on: 14.01.2025
Pronounced on: 20 .01.2025
Raj Ali son of Benia Amin resident of Prangla, District Jammu at present
lodged in Central Jail, Kotbhalwal through wife Asha wife of Raj Ali
resident of Dohal Khour District Jammu
...PETITIONER(S)
Through: - Mr. Gagan Oswal Advocate.
Vs.
Union Territory of J&K & and ors. ...RESPONDENT(S)
Through: - Mr. Pawan Dev Singh Dy.AG
CORAM: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1 The petitioner through his wife (hereinafter referred to as
the ‘detenu’) has challenged order No.PSA 03 of 2024 dated 30.01.2024
issued by respondent No.2, District Magistrate, Jammu (‘the detaining
authority’ for short) whereby he has been taken into preventive custody
with a view to prevent him from acting, in any manner, prejudicial to the
public order.
2 The detenu is shown to be involved in as many as five
different FIRs registered in the years 2014, 2015, 2017 and 2023 at
Police Station, Khour and Police Station, Akhnoor. The detenu is
allegedly involved in the commission of offences under Sections
188,307,323,427,147,148,379,332, 3/11 PCA Act and 4/25 Arms Act.It
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is mentioned in the grounds of detention that because of his persistent
and continuous involvement in the criminal activities, the detenu has
created fear amongst the locals. It is stated that the substantive law has
failed to deter the detenu and, therefore, the impugned order is passed
for the purpose of preventing and combating activities prejudicial to the
maintenance of public safety.
3 The impugned order of detention is challenged by the detenu
primarily on the following grounds:-
(i) That the impugned order suffers from non-application of
mind. The detaining authority has, in the order of detention,
referred to alleged commission of various offences and
registration of FIRs, but has not spelled out how the
involvement of the petitioner in the commission of different
offences has the potential of disturbing the public order.The
respondent No.2 has thus failed to make a distinction
between what is prejudicial to public order and what is only
a problem of law and order;
(ii) That it has not been brought to the notice of the
Detaining Authority that in the aforesaid FIRs the detenu
stood admitted to bail by the competent Court of law. The
Detaining Authority has, thus, shown no awareness about
the factum of detenu having been released on bail. The
subjective satisfaction arrived at by the Detaining Authority
without taking into consideration the said aspect is, thus,
vitiated and is an outcome of total non application of mind.
(iii) That the grounds of detention are mere reproduction of
dossier which shows non application of mind on the part of
the Detaining Authority,
(iv) That the translated script in Gojri language of the
material forming basis of the grounds of detention has not
been supplied to the detenu.
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4 The respondents, in their counter affidavit, have disputed
the averments made in the petition and stated that they have followed the
provisions of J&K Public Safety Act. It is submitted that the detenu has
been detained only after following due procedure and that there has been
proper application of mind for detaining the detenu. It is further
submitted that the detenu has no respect for law of the land which is
clearly reflected from the fact that a series of criminal cases stands
registered against him, as a result of which, the detenu has become a
threat to the life and liberty of the people at large. Thus, according to the
respondents, the activities of the detenu are prejudicial and detrimental
to the maintenance of public order in the area. The learned counsel for
the respondents also produced the detention record to lend support to the
stand taken in the counter affidavit.
5 I have heard learned counsel for the parties and perused the
pleadings and the record produced by the respondents.
6 Although, learned counsel for the detenu has raised many
grounds for assailing the impugned order of detention, yet, during the
course of arguments, he has laid much emphasis on the following two
grounds:
(i) That it has not been brought to the notice of the
Detaining Authority that in the aforesaid FIRs the detenu
stood admitted to bail by the competent Court of law.. The
Detaining Authority has, thus, shown no awareness about
the factum of detenu having been released on bail. The
subjective satisfaction arrived at by the Detaining Authority
without taking into consideration the said aspect is, thus,
vitiated and is an outcome of total non application of mind.
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(ii) that the detenu is an illiterate person and the contents of
detention warrant and grounds of detention have not been
read over and explained to the detenu in a language which
he fully understood i.e Gojri language.
7 From a perusal of the material available on the file, the
ground regarding non-application of mind on the part of the detaining
authority appears to be forceful, as the grounds of detention do not bear
any reference to the fact that the detenu has already been admitted to bail
in the aforesaid FIRs on the basis of which he has been taken into
preventive custody. The non-mentioning of this important fact in the
grounds of detention exhibits non-application of mind on the part of the
detaining authority. This shows that the detaining authority has not
meticulously examined the record which passing the impugned order of
detention which renders the same unsustainable in law. I am supported
in my aforesaid view by the judgment of the Supreme Court rendered in
the case of Anant Sakharam Raut vs. State of Maharasthra and ors,
AIR 1987 SC 137. Relevant paragraph is reproduced hereinbelow:
“We are not satisfied that this is a fit case to resort to
preventive detention. We refrain from referring to the
other grounds urged before us and from examining them.
The petitioner is entitled to succeed on the first ground.
We hold 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. The Appeal and the Writ Petition are allowed
without any order as to costs”.
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8 The next ground urged by the learned counsel for the detenu
is that the detenue is an illiterate person, as such, it was incumbent upon
the respondents to explain to him at least the grounds of detention in the
language that he understands viz., Gojri but in the instant case, nothing
of the sort has been done by the respondents.
09 If we have a look at the execution report, which is available
in the detention record, it is recorded therein that the grounds of
detention were read over to the detenue in English language and
explained to him in Hindi/Urdu language. The execution report bears the
thumb impression of the detenue, which means that he is an illiterate
person. In these circumstances, it was incumbent upon the respondents
to explain the contents of detention warrant and the grounds of detention
to the detenu in his mother tongue viz., Gojri, which they have
admittedly not done.
10 A Constitution Bench of Supreme Court examined in detail
the scheme of Article 22(5) of the Constitution of India in the case of
Harikisan vs. State of Maharashtra and ors, AIR 1962 SUPREME
COURT 911 and held that the communication of the grounds of
detention to the detenu in writing and in a language which he
understands is imperative and essential to provide an opportunity to
detenu of making an effective representation against the detention and in
case such communication is not made, the order of detention would
stand vitiated as the guarantee under Article 22(5) is violated.
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11 For the foregoing reasons, the impugned order of detention
becomes unsustainable in law and deserves to be quashed. The writ
petition is, accordingly, allowed and the impugned order of detention is
quashed. The detenu is directed to be released from the preventive
custody forthwith, provided he is not required in any other case.
12 . The record, as produced, be returned to the learned counsel
for the respondents.
(Moksha Khajuria Kazmi)
Judge
Jammu
20. 01.2025
“Sanjeev”
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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