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Judgment
Order impugned bearing No.13 of PSA 2017 dated 28th of November, 2017, passed by District Magistrate, Jammu, has been questioned by the
petitioner, namely, Sunny Kumar S/o Yog Raj alias Jaggar R/o W.No.4, Tehsil R.S Pura, District Jammu, by virtue of which he has been placed under
preventivedetention, on the  grounds set out therein.Â
Counter-affidavit has been filed by respondents, resisting the petition.Â
I have heard learned counsel for parties and considered the matter.Â
Detenu has been placed under detention vide detention order No.13 of PSA 2017 dated 28th of November, 2017, passed by District Magistrate,
Jammu, in exercise of powers conferred by Section 8 (1) (a) of Jammu and Kashmir Public Safety Act, 1978 (for short “Act of 1978â€) on the
ground of his being allegedly involved in several criminal cases viz. FIR Nos.18/2011, 144/2011, 174/2012, 174/2014, 43/2015, 138/2015 and 267/2017.
Learned counsel for petitioner states that the procedural safeguards as provided under Section 8(4) of Act of 1978, by which prior to
Government‟s approval of detention order, which is to be done within 12 days of detention order, detaining authority has also power to revoke
detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19
of Act of 1978. He has also averred that till the Government‟s approval of detention order is granted, as detaining authority had the power to revoke
the detention order, a representation could have been made to detaining authority for revoking detention order. Learned counsel for the petitioner
submits that respondents had not disclosed in the detention order to which authority or to whom the detenu can represent for redressal of his
grievance and as such deprived him to represent by not disclosing at the relevant point of time. He further states that it was incumbent upon the
detaining authority to have informed detenu that he could also make a representation to detaining Authority, if he so desired. His further contention is
that since detaining authority did not communicate to detenu that such a representation could be made to detaining authority, this in itself amounted to
infraction of provisions of Section 13 of Act of 1978, read with Article 22(5) of the Constitution of India. To buttress his arguments, learned counsel
for petitioner relies upon State of Maharashtra and others v. SantoshShankar Acharya, (2000) 7 SCC 463, and Tariq Ahmad Dar v. State of J&K &
ors. 2017 Legal Eagle 131. On the strong point of theaforesaid decisions of the Supreme Court and this Court, learned counsel for petitioner has
contended that detention order in the present case also became invalid because of the non-communication of fact that detenu could make a
representation to detaining authority till the Government had approved detention order.
Per contra, learned counsel for respondents has insisted that all thetechnical requirements had been complied with, more particularly Section 13 of
J&K PSA, which required that earliest opportunity of making a representation, be provided to the detenu.Â
Section 8 of Act of 1978, and, in particular, Sub-Section (2) thereof, envisages that a detention order can be passed, inter alia, by a District
Magistrate. Sub-Section (4) of Section 8 of the Act envisions that when any order is made under Section 8 by a person mentioned in Subsection (2),
he shall forthwith report the fact to the Government together with grounds on which order has been made and such of particulars as in his opinion
have a bearing on the matter, and no such order shall remain in force for more than 12 days after making thereof unless in the meantime it has been
approved by Government. This clearly implies that though District Magistrate can make a detention order, such detention order requires to be
approved by Government not later than 12 days from the date of the order. Section 19 of the Act of 1978 says about revocation of detention orders. It
envisages that without prejudice to the provisions of Section 21 of General Clauses Act, Samvat 1977, a detention order may, at any time, be revoked
or modified by the Government, notwithstanding that the order has been made by any officer mentioned in Subsection (2) of Section 8. Sub Section
(2) of Section 19 envisages that there shall be no bar in making a fresh order of detention against a person on the same facts as an earlier order of
detention made against such person in any case where earlier order of detention or its continuance is not legal on account of any technical defect or
earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order, provided that in computing
the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such
person was under the earlier order of detention shall be excluded.
It may not be out of place to mention here that till the Government grants approval to detention order in terms of Subsection (4) of Section 8 of Act
of 1978, detaining authority has power to add to, amend, vary or rescind inter alia, any order issued by him which includes a detention order. The
Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v.Union of India, (1995) 4 SCC 51, came to
the conclusion that untildetention order is approved by the State Government, detaining authority can entertain representation from detenu in exercise
of powers of the General Clauses Act of Bombay and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The
Supreme Court held that, this being the position, non-communication of the fact to detenu that he could make a representation to detaining authority so
long as the order of detention has not been approved by the State Government in a case where order of detention is issued by an officer other than
the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of detenu under Article 22(5) of
the Constitution of India and that the ratio of the Constitution Bench decision in case of Kamlesh kumar's case (supra) would apply notwithstanding
the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. In the
end the Supreme Court held as under:-
This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the
detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact
to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right
guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no
infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail
and stand dismissed.
From the above, it is unequivocally clear that non-communication of fact that detenu can make a representation to detaining authority, till detention
order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the
Constitution of India as also of the right under Section 13 of J&K Public Safety Act, 1978. Failure of such non-communication would invalidate the
order of detention.Â
It is pertinent to mention here, apart from what has been discoursed herein before, that reverence of life is insegragably concomitant with the
dignity of a human being who is basically divine, not obsequious. A human personality is endued with potential infinitude and it blossoms when dignity
is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as
a momentary spark of light or, for that matter, “a brief candleâ€, or “a hollow bubbleâ€. The spark of life gets more splendiferous when man is
treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligenceâ€. When
a dent is created in the reputation, humanism is paralyzed. Reverence for the nobility of a human being has to be the cornerstone of a body polity that
believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our
Constitutional philosophy and it has its ubiquitous presence and the majesty and sacro-sanctity dignity cannot be allowed to be crucified in the name of
precautionary incarceration. AlbertSchweitzer, highlighting on Glory of Life, pronounced withconviction and humility, “the reverence of life offers
me my fundamental principle on moralityâ€. The aforesaid expression may appear to be an individualistic expression of a great personality, but, when
it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a
thinker about the respect that life commands.
Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution. An
exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution. Fundamental
rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without
a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order
of three months, or any other period(s), is a punishment of that particular period‟s incarceration. What difference is it to detenu whether his
immurement is called preventive or punitive? Besides, in cases of preventive detention no offence is proved and justification of such detention is
suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence.
Preventive detention is every so often described as a „jurisdiction of suspicion‟, Detaining authority passes detention order on subjective
satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to rule of law.Â
Preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to
be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu
is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the
detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenu by the
Constitution and the preventive detention law, should be strictly followed. Right to liberty guaranteed by Article 21 implies that before a person is
imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to
properly defend himself except through a lawyer. The importance of a lawyer to enable a person to properly defend himself has been elaborately
explained by the Supreme Court in A.S. Mohd. Rafi v.State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali v. State of Assam, JT 2011 (2) SC
As observed byMr Justice Sutherlandof the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932) “Even the intelligent and educated
layman has small and sometimesno skill in the science of lawâ€, and hence, without a lawyer he may beconvicted though he is innocent. Article 22(1)
of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3)
specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive
detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous,
historical struggles, will become nugatory. In State of Maharashtra & Ors. Vs. Bhaurao PunjabraoGawande, (2008) 3 SCC 613 this Supreme Court
observed:
“...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a
Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is
why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of
fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against
executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a
lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample
upon human rights which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the
Government we fought forâ€. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from
without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982)
1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54.â€
The Constitution Bench of the Supreme Court in M. Nagaraj & ors.Vs. Union of India & ors. (2006) 8 SCC 212, observed:
“It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any
Constitution by reason of the basic fact that they are members of the human race.â€
The Nine Judge Constitution Bench of the Supreme Court in I.R.Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1,observed:
 “It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution.....
Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & “transcendentalâ€,
inalienable, and primordialâ€.
It is the submission of Mr. S.S Nanda, learned Sr. AAG appearing for the respondents that the petitioner is a habitual offender and is involved in
multiple criminal cases, and in this regard various First Information Reports have been registered against him with Police Station, R.S Pura, for the
commission of offences punishable under Sections 307/341/382/147/148/325/326 RPC, 4/25 Arms Act, 341, 323, 147/148, 457/380,
307/323/147/149/120-B RPC, 4/25 Arms Act, 307/147/ 148/149RPC, 4/25 Arms Act, 366/109, 3/25, 4/25 Arms Act. Mr. Nanda, learned Sr.AAG
further submits that in view of serious involvement of detenu in several criminal activities, respondent No.2 passed the impugned detention order
against the petitioner and thereafter, respondent No.1, i.e., Principal Secretary to Government, Home Department, J&KÂ approved by extending the
period of detention for a period of three months vide order No. Home/PB-V/2380 of 2017 dated 26.12.2017 and detained the detenu in Central Jail,
Kot Bhalwal, Jammu, thereafter, respondent No.2 vide Order No. Home/PB-V/212 of 2018 dated 27.02.2018, extended the period of detention by
further three months and lastly vide Government Order No. Home/PB-V/519 of 2018 dated 24.05.2018, the detenu was further detained for a period
of three months.
Per contra, Mr. D.S Saini, learned counsel for the petitioner submits that in all the aforementioned criminal cases, the detenu is facing trial before
the competent court of jurisdiction. His further contention is that the matter is subjudice before the trial courts and the respective trial Courts have yet
to give its findings in the criminal cases. Submission of learned  counsel for the petitioner has substance. Maybe, offences allegedly committed by
detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would
not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of
investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual
custody without trial. The Supreme Court in “Rekha v. State of Tamil Nadu†AIR 2011 SCW 2262, while emphasizing need to adhere to
procedural safeguards, observed:
“It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or
reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as
“jurisdiction of suspicionâ€, The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22
specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate
within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.â€
It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme
Court in V. Shantha v. State of Telangana & ors, AIR 2017SC 2625. The Supreme Court has held thatpreventive detention of aperson by a State
after branding him a „goonda‟ merely because the normal legal process is ineffective and time-consuming in „curbing the evil he spreads‟, is
illegal and that detention of a person is a seriousmatter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient
remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to
normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial
activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of
the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to
attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws
would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of
offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of
investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in
perpetual custody without trial. My views are fortified by the judgments rendered in Rekha’s case and V. Shantha v. State of Telangana case
(supra) and SamaAruna v. State of Telengana AIR 2017 SC 2662.
No doubt, neither possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of
preventive detention. But, failure of detaining authority to consider possibility of either launching or pendency of criminal proceedings may, in the
circumstances of a case, lead to the conclusions that detaining authority has not applied its mind to vital question whether it was necessary to make an
order of preventive detention. Since there is allegation that the order of detention is issued in a mechanical manner without keeping in mind whether it
was necessary to make such an order when criminal proceedings could well serve the purpose. Detaining authority must satisfy the court that the
question too was borne in mind before the order of detention was made, therefore, the Court is justified in drawing the inference that there was non-
application of mind by detaining authority to vital question whether it was necessary to preventively detain the petitioner.
For the foregoing reasons, this petition is, disposed of, and Order impugned bearing No. 13 of PSA 2017 dated 28.11.2017, passed by District
Magistrate, Jammu, quashed. Consequently, Government Orders No. Home/PB-V/2380 of 2017 dated 26.12.2017, Home/PB-V/212 of 2018 dated
27.02.2018 and Home/PB-V/519 of 218 dated 24.05.2018 are also quashed. Respondents are directed to release the detenu, namely, Sunny Kumar
S/o Yog Raj R/o W.No.4TehsilR.S PuraDistrict Jammu, forthwith, providedhe is not required in any other case.
Disposed of with the aforesaid observations.
Registry is directed to return the record produced by Mr. S.S Nanda, learned Sr. AAG.