J&K HC | Even in cases where a person has been prosecuted in a Court of law and has been discharged by the Magistrate, a valid order of detention can be passed against him in connection with that very incident; HC reiterates

Jammu and Kashmir High Court: Rajnesh Oswal, J., while rejecting the present petition on lack of merits, said, “…this Court is of the considered view that the order of detention impugned has been issued by the detaining authority well within the parameters of law and no fault can be found with it and, as such, the same is upheld.”

Background

Through the medium of this petition, the petitioner has questioned the order of detention dated 04-07-2019 issued by the respondent 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978.

 Issue

  1. Whether detaining authority followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution as well as Section 13 of the Public Safety Act?
  2. Whether detaining authority furnished the material relied upon them, that has deprived the petitioner of his right to make an effective and purposeful representation to the Government against the order of detention?
  3. Whether the order of detention has been passed on irrelevant, vague and non-existent grounds, as contended by the petitioner?
  4. Whether the detention order was approved within the statutory period?
  5. Whether it was mandatory for the respondent authorities to invoke the Public Safety Act and the same could not be dealt by procedure under criminal law?

 Observations

Upon the first issue, reliance was placed on the case of Abdul Latif v. B.K. Jha, (1987) 2 SCC 22, wherein it was held by the Supreme Court that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go beyond the subjective satisfaction of the detaining authority. 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. With respect to the present facts and circumstances, the Court noted, “Despite having been informed about the grounds of detention and also furnishing of the relevant documents, the petitioner has not chosen to make any representation either to the Detaining Authority or to the Government. Thus, there is compliance of both the Article 22(5) of Constitution of India as well as section 13 of the Act.”

Addressing the second issue, the Court remarked, “The perusal of detention record reveals that the detention order, notice of detention and grounds of detention and other related documents, 21 in number, have been handed over to the detenue-petitioner on the date of execution of warrant of detention i.e. 10-07-2019 and the execution report has been duly signed by the petitioner… More so, from both the execution report as well as receipt of grounds of detention, it is evident that the grounds of detention were read over to the petitioner in English and explained to him also in Kashmiri language.” It was concluded by the Court that the petitioner was well aware of all the grounds of detention and was also supplied with the documents relied by the detaining authority and therefore any contention claiming otherwise shall be groundless and without merit.”

Answering issue no. 3, Court said, “…the detention order has been issued by the respondent No. 2 on various grounds duly supported by documentary evidence. The grounds cannot be considered as vague, non-existent or irrelevant. Even otherwise, when the detention order has been issued on various grounds and even if one of the grounds is un-sustainable, still the detention order can be sustained as the other grounds.”

To determine the fourth issue, Court placed reliance over the statutory provisions, in the words, “As per the mandate of section 15 of the Public Safety Act, the Detaining Authority within four weeks from the date of detention, has to place before the Advisory Board the grounds on which the order has been made and the representation, if any, by the person affected by the order. As per section 8(2) of the Act, when the order of detention has been issued under this section, the Detaining Authority has to send the order to the Government along with grounds of detention and other particulars as may be required and no detention order has to remain in force for more than 12 days after making thereof, unless it has been approved by the Government. The perusal of the detention record reveals that the detention order has been approved by the Government on 12-07-2019, that is, within the statutory period. More so, the case of the petitioner was also referred to the Advisory Board and the Advisory Board vide its opinion dated 23-07-2019 has opined that there are sufficient grounds for detention of the petitioner and it has also been observed that the detenue was informed of his right to make representation.”

Delving into issue no. 5, Court disagreed with the precedent relied by counsel for the petitioner, stating that, “…the petitioner has indulged in subversive activities prejudicial to the security of the State and such type of activities are not conducted openly but in clandestine manner” and therefore unlike the case relied on, the ordinary law of the land does not seem adequate to take care of such illegal activities. Reliance was further placed on Sasti v. State of West Bengal, (1972) 3 SCC 826, wherein the Supreme Court said, “The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a Court of law in respect of an incident and has been discharged by the trying Magistrate, a valid order of his detention can be passed against him in connection with that very incident.”

 Decision

While rejecting the present petition, Court discussed at length, the requisites of a valid detention order and compliance of the same in the present case.[Asif Rashid Mir v. State of Jammu and Kashmir, 2020 SCC OnLine J&K 714, decided on 30-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.