Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed a petition which was filed against the order passed by the Commissioner of Police, Surat whereby the petitioner is detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Advocate for the petitioner had submitted that, mere filing of five FIRs against the petitioner itself was no ground, for the detaining authority, to arrive at the conclusion that the activities of the petitioner were prejudicial to the maintenance of the public order. It was further submitted that, no legally sustainable satisfaction was recorded by the detaining authority before passing the impugned order.

Assistant Government Pleader for the respondent State Authorities has supported the detention order passed by the detaining authority.

The Court found that the detaining authority had exercised the powers, treating the petitioner as a ‘dangerous person’ within the meaning of Section 2(c) of the Act. The five FIRs, which were the basis to treat the petitioner as such a person was referred to in the impugned order and further details in that regard were considered by the Court. The Court finally opined that the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order.

It was noted that in the grounds of the detention, the detaining authority had recorded to the effect that, according to him, the activities of the petitioner created a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record, this Court found that, the citation of such words was more in the nature of rituals rather than with any significance to the alleged activities of the petitioner.

The petition was allowed.[Keyur v. Police Commr., 2021 SCC OnLine Guj 1327, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the Petitioner: Mr Samir Afzal Khan

For the Respondents: Mr Shivam Dixit

Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J., while setting aside the detention order, reiterated that subjective satisfaction of the detaining authority is not immune from judicial reviewability.

 Background

The petitioner has challenged detention order dated 10-03-2020, passed by respondent 2, whereby the petitioner Mohd. Amin Dar has been detained in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 The detention order has been challenged on the ground that

  1. The grounds of detention are vague and non-existent.
  2. That the order has been passed on an alleged single activity of the petitioner.
  3. That the petitioner was already in custody in FIR No. 27 of 2020 registered with Police Station, Magam and had neither applied for bail nor was bail due to him in view of the provisions of NDPS Act.
  4. That no reason has been given which compelled the respondents to issue the order of detention.
  5. That the respondent only relied upon police dossier and the copy of dossier and the material have not been provided to the petitioner while detaining the petitioner.
  6. That the petitioner only understands Urdu and Kashmiri language whereas the detention order was in English and the translated version of the detention order has not been provided to the petitioner thereby depriving him of making effective representation in the matter.

 Issue

Whether detention order made stands in compliance with the statutory provisions restricting personal liberty?

 Observations

In pursuance of its decision, Court observed,

“Merely informing the petitioner that the petitioner has right to be heard in person by the competent authority does not fulfill the responsibility of the respondents unless the petitioner has been provided with the relevant material as stated above. The providing of material by the detaining authority is not mere formality and if the same is not done by the detaining authority the detention order cannot be upheld in law.” With respect to the alleged grounds of detention being bad in law, the Court noted, “The order of detention cannot be passed on mere assumptions and the detaining authority has to address itself to the question if the ordinary law to which the petitioner is subjected to, is sufficient to deal with the situation.” Reliance was further placed on, Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, wherein the Supreme Court held, “whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenue was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”

 Decision

Quashing the said detention order, the Court held, “…the detention order is bad for the reason that the necessary material was not provided to the petitioner, the single alleged act of the petitioner was not sufficient to invoke the detention order and that the petitioner has been deprived of his right to representation before the competent authority in an effective manner as he was deprived of the relevant material which formed basis of detention order.”[Mohammad Amin Dar v. UT of J&K, 2020 SCC OnLine J&K 692, decided on 23-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J., while dismissing a criminal writ petition seeking to challenge the grounds preferred for detention, said, “A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person.”

Brief Facts

Petitioner in the instant case was arrested in the first week of October, 2018, detained illegally for several days and thereafter was implicated in FIR No. 22 of 2018 under Sections 307 Ranbir Penal Code (“RPC”), Sections 7/27 of Arms Act, Sections 3/4 Explosive Substances Act and FIR No. 25 of 2018 under Sections 307 RPC, Sections 7/27 Arms Act by the Police Station, Pulwama. Subsequently, the petitioner was placed under preventive detention following the detention order of the District Magistrate, Pulwama. Aggrieved by the impugned order, and alleging that the said detention was devoid of any procedural safeguards under the Constitution of India as well as the J&K Public Safety Act, the petitioner has moved before this Court.

Contentions

The Counsel for the petitioner made the following contentions;

  1. That the grounds of detention are vague, equivocal, obscure, indefinite, not connected or not proximately with the detenu and are mere assertions of detaining
  2. That the case mentioned in grounds of detention has no nexus with detenu and has been fabricated by police in order to justify its illegal action of detaining the detenu.
  3. That the detaining authority has mentioned two FIRs in the grounds of detention, however, no specific details have been put on records mentioning date, month or place of occurrence.
  4. That the respondents have not provided copies of the documents referred to in the grounds of detention and relied upon by the detaining authority, enabling the detenu to make an effective representation.
  5. That the detenu, who was already in custody of police in respect of aforesaid FIRs, reflected no immediate possibility of being released on bail and that there was no compelling reasons given in grounds of detention for passing such order.

Observation

The Court made noticeable remarks, while citing settled precedents and related legislations on the said subject matter. It reiterated that the Right to personal liberty is most cherished right guaranteed under our Constitution and has been transcendental, inalienable to a person independent of the Constitution and further explained the objective, administrative limits & checks while exercising the Preventive Detention Laws.

  1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A person is not to be deprived of his personal liberty except in accordance with the procedure established by law and such procedure must be just, fair and reasonable.
  2. Sasthi Chowdhary v. State of W.B., (1972) 3 SCC 826; “It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention.”
  3. Haradhan Saha v. State of W.B., (1975) 3 SCC 198; “While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Punitive incarceration is after trial on the allegations made against a person whereas preventive detention is without trial into the allegations made against him.”
  4. State of Maharashtra v. Bhaurao Punjabrao, (2008) 3 SCC 613; “Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose their entire meaning, are the true justifications for the laws of preventive detention. This justification has been described as a jurisdiction of suspicion and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty.”
  5. Abdul Latif v. B.K. Jha, (1987) 2 SCC 22; “Under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.” In the present case, Advisory Board has furnished its Report disclosing sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the State Interest.

With respect to legislative safeguards, the Court referred and stated,

  1. Article 22(4) & 22(5) of the Constitution of India; detenu to be informed, as soon as may be, the grounds on which the order of detention is so made and further ensure the earliest opportunity of making representation by him against such order.
  2. Sections 8,9,10, 13 of the Public Safety Act, 1978.

Decision

While dismissing the petition on lack of merit, the Court said, “The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not.” It further said that the grounds of detention in the present matter are definite and free from any ambiguity as pleaded by the petitioners. Furthermore, the records placed for the Court’s perusal show that detenu has been informed with sufficient clarity, about the facts and figures of what actually convinced the detaining authority while passing such order.[Riyaz Ahmad Bhat v. State of J&K, 2020 SCC OnLine J&K 507, decided on 30-09-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order and allowed the petition as the Detaining Authority had failed to mention in the detention order about the petitioner’s right to make representation.

In the present appeal, Wajid Haseeb, counsel for petitioner vehemently opposed the detention order passed against him. The detenu is who is already facing trial before a competent court of law detenu was enlarged on bail by the competent court of law but despite such order, he was not released. It was further contended that owing to this, the possibility of the detenu to be implicated in anti-national protests, such as stone-pelting seems farfetched and grounds taken in the detention order and the material referred to and relied upon has no relevance as he wasn’t actually released. Furthermore, it was submitted that the absence of material the detention order is passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law.

The Court relied on certain decisions of the Supreme Court to reach its verdict:

Khudiram Das v. State of W. B., (1975) 2 SCR 81 — the Supreme Court explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 — the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.

The Court opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material was not supplied to the detenu, the right of the detenu to file such representation was clearly impinged upon and the detention order stood resultantly vitiated. [Junaid Ahmad Dar v. State, 2020 SCC OnLine J&K 408, decided on 18-08-2020]

COVID 19Legislation UpdatesNotifications

No. F.2/1/88-HP-II/ Pt.-I/775-78.—Whereas the Lt. Governor of the National Capital Territory of Delhi is satisfied that it is necessary to do so;

Now, therefore, in exercise of the powers conferred by sub-section (3) of section 3, read with clause (e) of Section 2 of the National Security Act, 1980, the Lt. Governor of the National Capital Territory of Delhi is pleased to direct that during the period 19/04/2020 to 18/07/2020 the Commissioner of Police, Delhi may also exercise the powers of detaining authority under sub-section (2) of the section 3 of the aforesaid Act.


HOME (POLICE-II) DEPARTMENT

[Notification dt. 07-04-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan J., in a matter relating to preventive detention declined to provide opinion over that of detaining authority and reiterated that the object of preventive detention is not to punish a man but to prevent from any further acts.

The present case relates to the detenu, Mian Abdul Qayoom who is a renowned Practising Senior Advocate in the Jammu and Kashmir High Court and is also the President of the High Court Bar Association. The detenu had been placed under preventive detention in the year 2010 and after several confinements in various Sub Jails of the state, the detention order was withdrawn. The detenu was said to have been arrested during August 2019 and has been lodged into police custody under preventive detention. Upon several enquires as to the grounds of detention the close relatives of the detenu received an order and it was reported that the detenu was suffering from various ailments.

Advocates, Z.A. Shah, with Manzoor A. Dar, representing the petitioner submitted that the impugned order of detention issued by the respondent had not been communicated nor provided to detenu, which deprived the petitioner of making an effective representation before detaining authority. It was also submitted that the grounds of detention were signed by the respondents without any application of mind and without going through the grounds of detention. It was pointed out that the respondents had relied upon the FIRs registered in the year 2008 and 2010 for detaining the detenu, for which the petitioner had already served the required detention.

Senior Additional Advocate General representing the state,  B. A. Dar contended that the detenu was detained legally under the J&K Public Safety Act, 1978 (“Act of 1978”) and all statutory requirements have complied. It was contended that the contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention have been framed by detaining authority with a complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction

The Court upon perusal of the facts and circumstances of the case reiterated the purpose of the Act of 1978 that “the purpose of the J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences….it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.” The Court on examining the records stated that the grounds for detention are definite, proximate and free from any ambiguity. The Court placed reliance on State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216 and observed that it is a settled law that the High Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. It also relied on State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 and stated that the High Court does not sit in appeal over the decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. Upon reliance to various Supreme Court decisions the Court concluded that the present matter lies within the competence of Advisory Board since preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. [Mian Abdul Qayoom v. State of J&K, 2020 SCC OnLine J&K 96, decided on 07-02-2020]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: This Habeas Corpus petition was filed before the Bench of Ali Mohammad Magrey, J., for quashing of a detention order passed by District Magistrate by which detenu was detained.

Mir Shafaqat Hussain, learned counsel on behalf of petitioner submitted that detenu can make a representation to the Detaining Authority, is a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India and is a right under section 13(1) of the Jammu and Kashmir Public Safety Act, 1978 but the same was denied. Mir Suhail, Addl. Advocate General stated that detenu’s activities were prejudicial to the security of the State as well as the public order. Detaining him would prevent him from indulging in such acts was approved by the Government and the State Advisory Board constituted under Section 14 of PS Act.

High Court found substance in the arguments of the petitioner. On the point where detenu was not communicated the ground of detention it was found that grounds of detention were in English language and it was not suggested from the file before the Court if the grounds were explained to the detenu in a language understood by him. Thereby, depriving detenu of the right to make representation against the same. Detenu’s constitutional right was infringed as the Detaining Authority failed to mention in the detention order about petitioner’s right to make representation which renders the impugned order invalid. Therefore, impugned detention order was quashed and direction to release the detenu was passed. [Ajaz Ahmad Sofi v. State of J&K, 2019 SCC OnLine J&K 408, Order dated 03-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]