Rouf Ahmad Sheikh @APPELLANT@Hash State Of Jammu & Kashmir And Others

1) By virtue of order bearing No.07/DMK/PSA/2018 dated 26.07.2018, passed by respondent No.2-District Magistrate, Kulgam, in exercise of powers conferred under Clause (a) of Section 8 of the J&K Public Safety Act, 1978, Rouf Ahmad Sheikh, has been taken into preventive custody and lodged in District Jail, Kathua.

2) The petitioner's case, as set out in the petition, is that the detenue was arrested in the year 2017 by the security forces and was booked in case FIR No.183/2016 P/S Kulgam under Section 13 ULA Act & 7/25 A. Act. The detenue applied for bail which was granted by Ld. Sessions Judge, Kulgam but he was not released and instead was shifted to P/S Qazigund in connection with case FIR No.313/2017 and while in custody impugned detention order was slapped upon him. The allegations/grounds of detention are stated to be vague and mere assertions. The detenue had applied for bail in case FIR No.183/2016 which was granted on 20.01.2018. The bail application was contested by the respondents but the said fact has not been made mention of in the grounds of detention. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded. It is also projected that there has been non-application of mind.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents has made available detention records to lend support to the case set up in the counter affidavit.

4) Heard learned counsel for the parties and also perused the material/record available on file.

5) The main plank of the argument of the learned counsel for the petitioner contended that the detenue had been admitted to bail in FIR No.183/2016 which fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another" reported in AIR 1987 SC 137:-

"We hold that there was clear non-application of mind on the part of 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 judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"

6) Learned counsel for the petitioner next contended that there has been non-application of mind on the part of detaining authority while passing the impugned order, therefore, impugned order is bad in law, liable to be quashed.

7) One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention which shall form basis for passing the order of detention. In the order impugned as passed by District Magistrate, it is recorded; "Whereas on the basis of dossier placed before me by the Superintendent of Police, Kulgam, vide his No.Legal/PSA/09/2018/4317-20 dated 1.07.2018 am satisfied......" which shows that detaining authority has not scanned and sifted the material itself for preparation of the grounds of detention, which clearly shows that there has been non-application of mind on the part of detaining authority which passing the impugned detention order, which renders the impugned order bad.

8) Learned counsel for the petitioner next contended that the detenue has been disabled from making an effective representation against the detention. In this connection it is contended that the material forming base of the grounds of detention has not been furnished to the detenue.

9) The respondents, despite opportunity, did not chose to produce the detention record so as to show that the relevant has been supplied to the detenue so as to enable him to make an effective representation against the detention. Non-supply of the material would amount to violation of Article 22(5) of the Constitution of India, so deprivation of a valuable right.

10) In paras 27 and 28 of the judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka &Ors, reported in AIR 2009 Supreme Court 2184, Hon'ble Apex Court has held as under:

"27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone.

Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.

11) The personal liberty protected under Article 21 of the Constitution of India is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this regard support can be had from judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned Rekha Vs. State of Tamil Nadu and anr, reported in (2011) 5 SCC 244.

12) In view of the law laid down by the Hon'ble Apex Court, as quoted above, the impugned order is not sustainable on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

13) In the backdrop of what has been stated above, the petition is allowed, a consequence of which, the order of detention bearing No. 07/DMK/PSA/2018 dated 26.07.2018, passed by respondent No.2, quashed. Detenue is directed to be released from the preventive custody forthwith, unless, of course, not required in any other case.