Jammu & Kashmir High Court
Mohd. Azam vs The Union Territory Of Jammu on 12 November, 2024
1 S. No. 9 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on :06.08.2024 Pronounced on : 12.11.2024 Case No. :- HCP No. 27/2024 Mohd. Azam, Age 50 years, S/o Sh. Wazir Hussain, R/o Wand Mohra, Pukharni, Tehsil Qila Darhal and District Rajouri, Through his next friend/Nephew Sajjad Hussain, age 22 years, S/o Sh. Qadir Hussain, R/o Village Kalalkas, Tehsil and District Rajouri. Presently lodged in District Jail, Dhangri, Rajouri. ..... Petitioner(s) Through: Mr. Arshad Majid Malik, Advocate. Vs 1. The Union Territory of Jammu and Kashmir through the Financial Commissioner (Additional Chief Secretary), Home Department, Civil Secretariat, Jammu. 2. The District Magistrate, Rajouri. 3. The Superintendent, District Jail, Dhangri, Rajouri ..... Respondent(s) Through: Mr. Rajesh Thappa, AAG. Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE JUDGMENT
1. Impugned in the instant petition, filed under the provisions of Article 226
of the Constitution of India, is the order of Detention bearing No.
DMR/INDEX/01 of 2024 dated 30.01.2024 passed by the respondent
2 HCP No. 27/2024
No.2 i.e. District Magistrate, Rajouri (hereinafter referred to as the
“Detaining Authority”, for short), while invoking his powers under
Section (8) (1) (a) (i) of the Jammu and Kashmir Public Safety Act, 1978
(hereinafter referred to as the “PSA”, for short), whereby the
petitioner/detenu was ordered to be detained with a view to prevent him
from acting in any manner prejudicial to the maintenance of the public
order and lodged in District Jail, Dhangri, Rajouri.
2. The impugned detention order has been assailed in this petition on the
grounds inter alia that same is the outcome of non-application of mind as
being dehors of subjective satisfaction of the detaining authority; that
same has been based on the registration of FIR Nos. 189/2013 under
Sections 458/323/427 RPC, 195/2014 under Sections 307/341/323/147
RPC, 123/2014 under Sections 447/147/323 RPC, 26/2016 under Section
279 RPC and 53/2021 under Sections 353/332 IPC, all of Police Station,
Nowshera, which are reported to have finally culminated into the Final
Reports/Challans under Section 173 of repealed Code of Criminal
Procedure, 1973 (hereinafter referred to as the “Code”, for short)
corresponding to Section 193 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (BNSS, for short) pending against the detenu but the fact is that four
cases out of the said five cases stood already disposed off as compounded;
that the relevant material on the basis of which the impugned detention
order has been passed was not furnished to the petitioner/detenu in
entirety thereby preventing him from making an effective representation
as per the constitutional mandate to the detaining authority or the
3 HCP No. 27/2024
government; that the petitioner/detenu who only understands Gojri
language was not made to understand the contents of the impugned
detention order and the grounds of detention in his local language
understandable by him; that the petitioner/detenu notwithstanding the
furnishing of the copies of the entire detention record to him, made a
representation to the respondent Nos. 1 & 2 which was not considered;
that the detaining authority has repeated the contents of the dossier of the
concerned Superintendent of Police, verbatim in the grounds of detention
and has not applied his independent mind before ordering the preventive
detention of the petitioner thereby jeopardizing his fundamental right
guaranteed under Article 21 of the Constitution and that the detaining
authority has also referred to a report of District Special Branch, Rajouri
dated 10.01.2024 without making any specific allegation against the
petitioner/detenu.
3. The respondents through the memo of their objections have resisted the
instant petition on the grounds that none of the legal, statutory or
fundamental rights of the petitioner has been violated as he stands
detained strictly in accordance with law as his repeated criminal activities
were highly prejudicial to the maintenance of public order, who had
spread reign of terror in the locality; that the petitioner/detenu is involved
in five case FIR numbers; that all the procedural requirements including
furnishing of complete set of documents to the petitioner/detenu as well as
informing him regarding his right to make a representation to the
4 HCP No. 27/2024
detaining authority and/or to the government have been fully complied
with in the case.
4. I have heard learned counsel for the parties.
5. The learned counsel for the petitioner while reiterating his stand taken in
the instant petition submitted that the impugned detention order suffers
from patent illegality and deserves to be quashed as the same is outcome
of casual and reckless exercise of the detaining authority which has not
applied its independent mind but has wholly and solely acted upon the
dossier of the police. He submitted that out of five case FIR numbers
which were challaned against the petitioner/detenu, four FIR bearing Nos.
189/2013, 195/2014, 123/2014 & 26/2016 stood already closed much
before the passing of the impugned detention order. That the detaining
authority was not intimated about the said fact and, as such, the impugned
order has been passed upon suppression of the material information. That
the copies of the grounds of detention and other documents relied upon by
the detaining authority were not supplied to the petitioner/detenu not to
speak of revealing the contents of the same to the detenu in the language
understandable by him. The learned counsel further contended that the
petitioner/detenu made a representation to the respondent Nos. 1 & 2
mentioning therein that the criminal cases in respect of four FIR numbers
stood already closed upon compounding much prior to the passing of the
impugned order but his representation was thrown in the dustbin.
6. The learned counsel in support of his arguments placed reliance on a
catena of judgments of this Court passed on the subject and titled as
5 HCP No. 27/2024
“Aijaz Ahmad Sofi Vs. UT of J&K and another”, WP (Crl) No.
178/2022, decided on 26.08.2022, “Javaid Ahmad Bhat Vs. UT of J&K
and another”, WP (Crl) No. 507/2022, decided on 30.01.2023, “Aqib
Amin Rather Vs. UT of Jammu & Kashmir & anr.”, WP (Crl) No.
429/2022, decided on 24.08.2023, “Javid Ahmad Wani Vs.
Government of J&K & anr.”, WP (Crl) No. 73/2020, decided on
10.03.2021 & “Arif Ahmad Khan Vs. UT of J&K and anr.”, WP (Crl)
No. 244/2022, decided on 28.02.2023.
7. Per contra, Mr. Rajesh Thappa, learned Additional Advocate General has
submitted that the detaining authority was constrained under compelling
circumstances to order the detention of the petitioner as a preventive
measure in exercise of his powers under PSA as the detenu was seriously
involved in repeated criminal activities who had generated a fear and
terror in the locality and the public in general was fed up of his conduct.
That he could not be properly dealt with under the normal law because he
used to misuse the concession of bail granted in his favour by the criminal
courts by repeating the commission of the crime. He submitted that the
procedural requirements as per the Constitution and the PSA were fully
complied with in the case as the detenu was informed about the grounds
of his detention with furnishing of complete set of documents including
the grounds of detention to him. That the petitioner was also informed that
he has a right to make a representation to the detaining authority or the
government which he did but after consideration of his representation, no
case was made out for his release in the general interest of the Society.
6 HCP No. 27/2024
8. The detention record was perused at the time of hearing of the case and it
was returned back to the learned State counsel in the open court.
9. Pursued the record of the instant petition and also considered the rival
arguments advanced by the learned counsel for the parties.
10. Keeping in view the aforementioned perusal and the consideration in the
light of law on the subject, this Court is of the considered opinion that the
impugned detention order suffers from patent illegality. As rightly
contended by the learned counsel for the petitioner, the detaining
authority has not applied its independent mind while ordering the
detention of the petitioner and has unmindfully acted on the dossier of the
Police Superintendent concerned. As per the grounds of detention basing
the impugned order, five case FIR numbers are reported as registered
against the petitioner which have culminated into the Final Police
Reports/Challans. As per the grounds of detention all the five case FIR
numbers are reported pending trial but the petitioner has placed on record
the concrete proof by way of the copies of the final orders to the effect
that cases pertaining to four FIRs have already been closed by way of
compounding and only one case FIR is reported still pending disposal.
The grounds of detention, as such, are devoid of fairness and accuracy,
thus, leading to the non-application of mind of the detaining authority.
The dossier of the Police Superintendent concerned which also reveals all
the five case FIR numbers as still pending thus carried the false
information to the detaining authority. The grounds of detention appear to
be the ditto of the dossier and both appear to be just formal documents far
7 HCP No. 27/2024
from reality designed to illegally justify the impugned detention order. It
is a settled legal position that the detention order which suffers from
patent non-application of mind cannot sustain under law.
11. In its opinion, this Court feels fortified with law already laid down by this
Court in cases titled “Naba Lone Vs. District Magistrate, 1988 SLJ
300” and “Mohd. Farooq through Mohd. Yousuf Vs. UT of J&K and
others, WP (Crl) No. 17/2023”, decided on 03.09.2024 to the effect,
“the grounds of detention supplied to the detenu is a copy of dossier,
which was placed before the District Magistrate for his subjective
satisfaction in order to detain the detenu. This shows total non-application
of mind on the part of the Detaining Authority as he has dittoed the
Police directions without applying his mind to the facts of the case.”
12. As hereinbefore mentioned the grounds of detention are the ditto and
verbatim of the dossier. The two when placed and perused in
juxtaposition reveals that the detaining authority has followed the dossier
in its entirety even in phraseology to complete the formality. The
detaining authority has even repeated the words, “subject” occurring in
the dossier in the grounds of detention. Thus, it lends credence to the fact
that the impugned detention order is bereft of subjective satisfaction and
application of mind of the detaining authority.
This Court in its opinion is also fortified with the authoritative
judgment of the Hon‟ble Apex Court passed in case titled “Jai Singh and
ors. Vs. State of J&K”, AIR 1985 SC 764 decided on 24.01.1985, the
relevant portion whereof is reproduced as hereunder:
8 HCP No. 27/2024
“First taking up the case of Jai Singh, the first of the
petitioners before us, a perusal of the grounds of detention
shows that it is a verbatim reproduction of the dossier
submitted by the Senior Superintendent of Police,
Udhampur, to the District Magistrate requesting that a
detention order may kindly be issued. At the top of the
dossier, the name is mentioned as Sardar Jai Singh, father‟s
name is mentioned as Sardar Ram Singh and the address is
given as village Bharakh, Tehsil Reasi. Thereafter it is
recited “The subject is an important member of ……”
Thereafter follow various allegations against Jai Singh,
paragraph by paragraph. In the grounds of detention, all that
the District Magistrate has done is to change the first three
words “the subject is” into “you Jai Singh, S/o Ram Singh,
resident of village Bharakh, Tehsil Reasi”. Thereafter word
for word the police dossier is repeated and the word “he”
wherever it occurs referring to Jai Singh in the dossier is
changed into “you” in the grounds of detention. We are
afraid it is difficult to find greater proof of non-application
of mind. The liberty of a subject is a serious matter and is
not to be trifled with in this casual, indifferent and routine
manner.”
13. The last case FIR bearing No. 53/2021 of Police Station, Nowshera came
to be registered against the petitioner/detenu on 8th April, 2021 which
alone is reported to be still pending trial. Thereafter the detaining
authority has referred to a report of the District Special Branch, Rajouri
dated 10.01.2024 without any specific allegation to the effect that detenu
is continuously indulging in criminal acts, anti-social activities and has
not changed his behavior despite number of FIRs having been registered
against him. There is no specific allegation after the incident of
08.04.2021 which led to the registration of case FIR No. 53/2021 of
Police Station, Nowshera by way of registration of any FIR in any Police
Station against the detenu or by way of initiation of proceedings under
Sections 107, 110 and 151 of the Code of Criminal Procedure, 1973.
9 HCP No. 27/2024
Thus, it is clear that the impugned detention order dated 30.01.2024 has
been passed after a gap of about three years from the date of registration
of the last FIR bearing No. 53/3021 of Police Station, Nowshera dated
08.04.2021.
14. In the opinion of this Court, there appears to be no proximity or the live
link between the past conduct of the detenu and the need for passing of
the detention order. The same leads to an inference of non-application of
mind on the part of the detaining authority.
This Court feels supplemented in its opinion with the authoritative
judgment of the Hon‟ble Supreme Court of India reported in “Rajinder
Arora Vs. Union of India and others” AIR 2006 (4) SCC 796, decided
on 10.03.2006. The relevant paras of the judgment are reproduced as
hereunder:-
“The conspectus of the above decisions can be summarized
thus: The question whether the prejudicial activities of a
person necessitating to pass an order of detention is
proximate to the time when the order is made or the live-
link between the prejudicial activities and the purpose of
detention is snapped depends on the facts and circumstances
of each case. No hard and fast rule can be precisely
formulated that would be applicable under all circumstances
and no exhaustive guidelines can be laid down in that
behalf. It follows that the test of proximity is not a rigid or
mechanical test by merely counting number of months
between the offending acts and the order of detention.
However, when there is undue and long delay between the
prejudicial activities and the passing of detention order, the
court has to scrutinize whether the detaining authority has
satisfactorily examined such a delay and afforded a tenable
and reasonable explanation as to why such a delay has
occasioned, when called upon to answer and further the
10 HCP No. 27/2024court has to investigate whether the causal connection has
been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained
delay between the date of order of detention and the date of
securing the arrest of the detenu, such a delay would throw
considerable doubt on the genuineness of the subjective
satisfaction of the detaining authority leading to a legitimate
inference that the detaining authority was not really and
genuinely satisfied as regards the necessity for detaining the
detenu with a view to preventing him from acting in a
prejudicial manner.”
15. This Court in its opinion is also fortified with the authoritative judgment
of the Hon‟ble Apex Court passed in case titled “Rameshwar Shaw Vs.
District Magistrate, Burdwan and another”, AIR 1964 SC, 334, the
relevant portion whereof is reproduced as hereunder:
“In deciding the question as to whether it is necessary to
detain a person, the authority has to be satisfied that the said
person if not detained may act in a prejudicial manner and
this conclusion can be reasonably reached by the authority
generally in light of evidence about past prejudicial
activities of the said person. When evidence is placed, the
Detaining Authority has to examine the said evidence and
decide whether it is necessary to detain the said person in
order to prevent him from acting in a prejudicial manner.
Thus, it was held that the past conduct or antecedent history
of a person can be taken into account in making the
detention order and it is largely from prior events showing
tendencies or inclinations of a man that an inference could
be drawn whether he is likely even in the future to act in a
manner prejudicial to the maintenance of public order.
Further the past conduct or history of the person on which
the authority purports to act should ordinarily be proximate
in point of time and should have the rational connection
with the conclusion that the detention of the person is
necessary, that it would be irrational to take into account the
conduct of a person which took the place years before the
date of detention”.
16. The learned counsel for the petitioner during his arguments
submitted that the documents basing and referred to in the impugned
11 HCP No. 27/2024
detention warrant were not furnished to the petitioner/detenu in its
entirety, who notwithstanding such failure on the part of the
detaining authority made a representation to the respondent Nos. 1 &
2 which was not considered. Non-supply of the entire set of
documents basing and referred to in the detention order at an earliest
contravenes the provisions of Article 22 (5) of the Constitution. The
Constitutional mandate regarding information to the
petitioner/detenu that he has a right to make representation to the
detaining authority or to the Government in respect of his preventive
detention is not to be taken as a mere formality by making mention of
the words, “the detenu was also informed that he can make a
representation to the detaining authority or to the government in
respect of his preventive detention” in the previously
cyclostyled/computerized receipts but is meant to be followed with
utmost fairness, responsibility and accountability having regard to
the fact that detenu’s fundamental right to life and personal liberty is
being curtailed on account of his apprehended conduct. The detaining
authority and the government in case of making any representation
by the detenu to them as regards his detention are under a
constitutional obligation to accord due consideration under law to the
same and to intimate the result of the consideration to the detenu
through the concerned jail authority or through is home people.
17. The learned counsel for the petitioner has placed on record a copy of the
representation made by the detenu to the respondent Nos.1 and 2 along
12 HCP No. 27/2024
with an online printout of the acknowledgement of the same without any
status of the consideration.
18. It is a settled legal position that non-consideration of the representation of
the detenu vitiates the impugned order of detention.
19. In Tara Chand v. State of Rajasthan and others, 1980 (2) SCC 321
and Raghavendra Singh v. Superintendent, District Jail, Kanpur and
others (1986) 1 SCC 650, the Hon‟ble Apex Court has held that if there
is inordinate delay in considering the representation that would clearly
amount to violation of the provisions of Article 22(5) as to render the
detention unconstitutional and void.
In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC
417, it has been held as follows:
“It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu without
any delay. Though no period is prescribed by Article 22 of
the Constitution for the decision to be taken on the
representation, the words “as soon as may be” in clause (5)
of Article 22 convey the message that the representation
should be considered and disposed of at the earliest.”
In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC
476, it has been held as follows:
“…. it is settled law that there should not be supine
indifference, slackness or callous attitude in considering the
representation. Any unexplained delay in the disposal of the
representation would be breach of the constitutional
imperative and it would render the continued detention
impermissible and illegal.”
In Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781,
the Hon‟ble Supreme Court has held that the history of personal
13 HCP No. 27/2024
liberty, as is well known, is a history of insistence on procedural
safeguards. The expression „as soon as may be‟, in Article 22 (5)
of the Constitution of India, clearly shows the concern of the
makers of the Constitution that the representation, made on behalf
of detenu, should be considered and disposed of with a sense of
urgency and without any avoidable delay.
20. It was further held by the Hon‟ble Apex Court in the said case that writ of
Habeas Corpus is a writ of highest constitutional importance being a
remedy available to the lowliest citizen against the most powerful
authority.
21. This Court in its opinion is also fortified with the authoritative judgment
of the Hon‟ble Apex Court cited as Shalini Soni Vs. Union of India
(1980) 4 SCC 544: 1981 SCC (Ori) 38, the relevant portion of which is
reproduced as herein under:-
“The Article 22 (5) has two facets : (1) communication of
the grounds on which the order of detention has been made;
(2) opportunity of making a representation against the order
of detention. Communication of the grounds pre-supposes
the formulation of the grounds and formulation of the
grounds requires and ensures the application of the mind of
the detaining authority to the facts and materials before it,
that is to say to pertinent and proximate matters in regard to
each individual case and excludes the elements of
arbitrariness and automatism (if one may be permitted to use
the word to describe a mechanical reaction without a
conscious application of the mind). It is an unwritten rule of
the law, constitutional and administrative, that whenever a
decision making function is entrusted to the subjective
satisfaction of a statutory functionary, there is an implicit
obligation to apply his mind to pertinent and proximate
matters only eschewing the irrelevant and the remote.
Where there is further an express statutory obligation to
communicate not merely the decision but the grounds on
14 HCP No. 27/2024
which the decision is founded. It is a necessary corollary
that the grounds communicated, that is, the grounds so made
known, should be seen to pertain to pertinent and proximate
matters and should comprise all the constituent facts and
materials that went in to make up the mind of the statutory
functionary and not merely the inferential conclusions.
Now, the decision to detain a person depends on the
subjective satisfaction of the detaining authority. The
Constitution and the statute cast a duty on the detaining
authority to communicate the grounds of detention to the
detenu. From what we have said above, it follows that the
grounds communicated to the detenu must reveal the whole
of the factual material considered by the detaining authority
and not merely the inferences of fact arrived at by the
detaining authority. The matter may also be looked at from
the point of view of the second facet of Article 22(5). An
opportunity to make a representation against the order of
detention necessarily implies that the detenu is informed of
all that has been taken into account against him in arriving
at the decision to detain him. It means that the detenu is to
be informed not merely, as we said, of the inferences of fact
but of all the factual material which have led to the
inferences of fact. If the detenu is not to be so informed the
opportunity so solemnly guaranteed by the Constitution
becomes reduced to an exercise in futility. Whatever angle
from which the question is looked at, it is dear that
“grounds” in Article 22(5) do not mean mere factual
inferences but mean factual inferences plus factual material
which led to such factual inferences. The ‘grounds’ must be
self-sufficient and self-explanatory. In our view copies of
documents to which reference is made in the ‘grounds’ must
be supplied to the detenu as part of the ‘grounds’.”
22. The preventive detentions need to be passed with great care and
caution keeping in mind that a citizens most valuable and inherent
human right is being curtailed. The arrests in general and the
preventive detentions in particular are an exception to the most
cherished fundamental right guaranteed under Article 21 of the
Constitution of India. The preventive detentions are made on the
basis of subjective satisfaction of the detaining authority in relation to
15 HCP No. 27/2024
an apprehended conduct of the detenu by considering his past
activities without being backed by an immediate complaint as in the
case of the registration of the FIR and, as such, is a valuable trust in
the hands of the trustees. The provisions of Clauses (1) and (2) of
Article 22 of our Constitution are not applicable in the case of
preventive detentions. So, the provisions of Clause (5) of the Article
22 of our Constitution, with just exception as mentioned in Clause (6),
together with the relevant provisions of the Section 8 of PSA
requiring for application of mind, subjective satisfaction, inevitability
of the detention order, proper and prompt communication of the
grounds of detention and the information of liberty to make a
representation against the detention order, are the imperative and
inevitable conditions rather mandatory requirements for passing of a
detention order.
23. The Hon‟ble Supreme Court in case of “Rekha Vs. State of Tamil Nadu
through Secretary to Government and another”, reported in (2011) 5
SCC 244 has laid emphasis on the fundamental right to life and personal
liberty of a citizen of India guaranteed under Article 21 of our
Constitution and has, accordingly, stressed for taking great care and
caution while passing any preventive detention orders so that same are
passed in case of genuine and inevitable need only without any misuse or
abuse of the powers. The relevant provisions of the said authoritative
judgment are reproduced as hereunder:-
16 HCP No. 27/2024
“21. It is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though, is
that in substance a detention order of one year (or any other
period) is a punishment of one year’s imprisonment. What
difference is it to the detenu whether his imprisonment is
called preventive or punitive?
29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No
such law exists in the USA and in England (except during
war time). Since, however, Article 22 (3) (b) of the
Constitution of India permits preventive detention, we
cannot hold it illegal but we must confine the power of
preventive detention within very narrow limits, otherwise
we will be taking away the great right to liberty guaranteed
by Article 21 of the Constitution of India which was won
after long, arduous and historic struggles. It follows,
therefore, that if the ordinary law of the land (Indian Penal
Code and other penal statutes) can deal with a situation,
recourse to a preventive detention law will be illegal.
35. It must be remembered that in cases of preventive
detention no offence is proved and the justification of such
detention is suspicion or reasonable probability, and there is
no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a
‘jurisdiction of suspicion’, (Vide State of Maharashtra Vs.
Bhaurao Punjabrao Gawande. 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 detenu 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.
36. It has been held that the history of liberty is the history
of procedural safeguards. (See: Kamleshkumar Ishwardas
Patel Vs. Union of India and others). These procedural
safeguards are required to be zealously watched and
enforced by the court and their rigour cannot be allowed to
be diluted on the basis of the nature of the alleged activities
of the detenu. As observed in Rattan Singh Vs. State of
Punjab, (1981) 4 SCC 1981 :-
“4. May be that the detenu is a smuggler whose tribe
(and how their numbers increase!) deserves no sympathy
since its activities have paralysed the Indian economy.
But the laws of preventive detention afford only a
17 HCP No. 27/2024modicum of safeguards to persons detained under them,
and if freedom and liberty are to have any meaning in our
democratic set-up, it is essential that at least those
safeguards are not denied to the detenus.”
39. Personal liberty protected under Article 21 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. The
stringency and concern of judicial vigilance that is
needed was aptly described in the following words in
Thomas Pelham Dale’s case, (1881) 6 QBD 376 :
“Then comes the question upon the habeas corpus. It
is a general rule, which has always been acted upon by
the Courts of England, that if any person procures the
imprisonment of another he must take care to do so by
steps, all of which are entirely regular, and that if he fails
to follow every step in the process with extreme
regularity the court will not allow the imprisonment to
continue.”
24. In the case of “Francis Coralie Mullin Vs Administrator, Union
Territory of Delhi and others,” reported in (1981) SCC 608, it has been
inter alia authoritatively laid down:-
“4. Now it is necessary to bear in mind the distinction
between ‘preventive detention’ and punitive detention’, when
we are considering the question of validity of conditions of
detention. There is a vital distinction between these two
kinds of detention. ‘Punitive detention’ is intended to inflict
punishment on a person, who is found by the judicial
process to have committed an offence, while ‘preventive
detention’ is not by way of punishment at all, but it is
intended to pre-empt a person from indulging in conduct
injurious to the society. The power of preventive detention
has been recognized as a necessary evil and is tolerated in a
free society in the larger interest of security of the State and
maintenance of public order. It is a drastic power to detain a
person without trial and there are many countries where it is
not allowed to be exercised except in times of war or
aggression. Our Constitution does recognize the existence
of this power, but it is hedged-in by various safeguards set
out in Articles 21 and 22. Art. 22 in clauses (4) to (7), deals
specifically with safeguards against preventive detention
and any law of preventive detention or action by way of
18 HCP No. 27/2024preventive detention taken under such law must be in
conformity with the restrictions laid down by those clauses.
But apart from Art. 22, there is also Art. 21 which lays
down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi. v. Union
of India, a very narrow and constricted meaning was given
to the guarantee embodied in Art. 21 and that article was
understood to embody only that aspect of the rule of law,
which requires that no one shall be deprived of his life or
personal liberty without the authority of law. It was
construed only as a guarantee against executive action
unsupported by law. So long as there was some law, which
prescribed a procedure authorizing deprivation of life or
personal liberty, it was supposed to meet the requirement of
Art. 21. But in Maneka Gandhi’s case (supra), this Court for
the first time opened-up a new dimension of Art. 21 and
laid down that Art. 21 is not only a guarantee against
executive action unsupported by law, but is also a
restriction on law making. It is not enough to secure
compliance with the prescription of Article 21 that there
should be a law prescribing some semblance of a procedure
for depriving a person of his life or personal liberty, but the
procedure prescribed by the law must be reasonable, fair
and just and if it is not so, the law would be void as
violating the guarantee of Art. 21. This Court expanded the
scope and ambit of the right to life and personal liberty
enshrined in Art. 21 and sowed the seed for future
development of the law enlarging this most fundamental of
Fundamental Rights. This decision in Maneka Gandhi’s case
became the starting point-the-spring board-for a most
spectacular evolution the law culminating in the decisions
in M. H. Hoscot v. State of Maharashtra, Hussainara
Khatoon’s case, the first Sunil Batra’s case and the second
Sunil Batra’s case. The position now is that Art. 21 as
interpreted in Maneka Gandhi’s case (supra) requires that no
one shall be deprived of his life or personal liberty except
by procedure established by law and this procedure must be
reasonable, fair and just and not arbitrary, whimsical or
fanciful and it is for the Court to decide in the exercise of its
constitutional power of judicial review whether the
deprivation of life or personal liberty in a given case is by
procedure, which is reasonable, fair and just or it is
otherwise. The law of preventive detention has therefore
now to pass the test not only of Art. 22, but also of Art. 21
and if the constitutional validity of any such law is
challenged, the Court would have to decide whether the
procedure laid down by such law for depriving a person of
19 HCP No. 27/2024his personal liberty is reasonable, fair and just. But despite
these safeguards laid down by the Constitution and
creatively evolved by the Courts, the power of preventive
detention is a frightful and awesome power with drastic
consequences affecting personal liberty, which is the most
cherished and prized possession of man in a civilized
society. It is a power to be exercised with the greatest care
and caution and the courts have to be ever vigilant to see
that this power is not abused or misused. It must always be
remembered that preventive detention is qualitatively
different from punitive detention and their purposes are
different. In case of punitive detention, the person
concerned is detained by way of punishment after he is
found guilty of wrong doing as a result of trial where he has
the fullest opportunity to defend himself, while in case of
preventive detention, he is detained merely on suspicion
with a view to preventing him from doing harm in future
and the opportunity that he has for contesting the action of
the Executive is very limited. Having regard to this
distinctive character of preventive detention, which aims
not at punishing an individual for a wrong done by him, but
at curtailing his liberty with a view to pre-empting his
injurious activities in future.”
25. In the case of “Nand Lal Bajaj Vs State of Punjab and another,”
reported in (1981) 4 SCC 327, the Hon‟ble Supreme Court has stated the
position as under:-
“9. Among the concurring opinions, Krishna Iyer, J.,
although he generally agreed with Bhagwati, J., goes a step
forward by observing:
Procedural safeguards are the indispensable essence of
liberty. In fact, the history of procedural safeguards and the
right to a hearing has a human-right ring. In India, because
of poverty and illiteracy, the people are unable to protect
and defend their rights: observance of fundamental rights is
not regarded as good politics and their transgression as bad
politics. In short, the history of personal liberty is largely
the history of procedural safeguards. The need for
observance of procedural safeguards, particularly in cases
of deprivation of life and liberty is, therefore, of prime
importance to the body politic.”
20 HCP No. 27/2024
26. While summing up the case in hand, it is opined that the impugned
detention order suffers from the non-application of the mind by the
detaining authority and after passing of the same with such disability, the
detaining authority has further observed the mandatory provisions of
Article 22 (5) of the Constitution in breach. The detention order as such
cannot sustain.
27. The petitioner/detenu has been under detention since last about 10
months.
28. For the foregoing discussion, there seems to be merit in the instant
petition, which is allowed. The impugned Detention Order bearing No.
DMR/INDEX/01 of 2024 dated 30.01.2024 passed by the Respondent
No.2 i.e. District Magistrate, Rajouri is quashed with the direction to the
respondents to release the petitioner/detenu forthwith from his preventive
detention in the case in hand.
29. Disposed off.
(Mohd. Yousuf Wani)
Judge
JAMMU :
12.11.2024
Pawan Chopra
i) Whether the Judgment is speaking: Yes
ii) Whether the Judgment is reportable: Yes
Pawan Chopra
2024.11.18 15:08
I attest to the accuracy and
integrity of this document