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Judgment
Rajnesh Oswal , J
The petitioner has filed the present petition through his wife for quashing the order of detention bearing No. DMB/PSA/45 of 2022 dated 16.09.2022 issued by respondent No. 2 under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. It is stated that the petitioner is a religious preacher and only earner in his family. In the year 2016, he was implicated in false and frivolous FIR No. 69/2016 for the offences punishable under Sections 307, 148, 149, 336, 332, 427 RPC registered with Police Station Khansahib but the petitioner was later bailed out in the said FIR. It is further stated that the petitioner has organized multiple blood donations camps in collaboration with the Department of Health, Sufi Conference in collaboration with the army and multiple army tours of peace across different States of India. It is averred by the petitioner that on 12.09.2022, the petitioner was picked up by the Police from his home and shifted to Central Jail, Kotbalwal, Jammu pursuant to the order of detention issued by respondent No. 2. The petitioner claims that he has made a representation against the order of detention but the same has not been considered by the detaining authority. The petitioner has impugned the order of detention on the following grounds:
i) That there is an unexplained delay of six years in passing the order of detention as last alleged illegal activity attributed to the petitioner is in respect of FIR No. 69/2016 registered in the year 2016 and this delay has snapped the link between the alleged activity and the purpose for issuing the order of detention.
ii) That the grounds of detention are replica of the contents of the police dossier which clearly demonstrates that respondent No. 2 has not applied its mind while passing the order of detention.
iii) That the material relied upon by the detaining authority was not provided to the petitioner.
Respondent No. 2 has filed reply affidavit stating therein that the petitioner is a hardcore motivator and supporter of anti-national elements and had been delivering speeches in the past which are against the law of land. The detenue by way of such speeches is instigating youth of the Valley to join terror ranks. The detenue was also involved in the FIR No. 69/2016 of Police Station, Khansahib. It is further stated that the police concerned prepared the dossier which was considered by respondent No. 2 and after finding his activity prejudicial to the security of the UT and that the normal law of land was not sufficient to deter the petitioner from his nefarious activities, the order of detention was passed. The warrant issued pursuant to order of detention was executed on 19.09.2022. The contents of warrant were read over and explained to the detenue in his own language which he understood. The detenue was also informed in respect of grounds of detention and further that he had right to make a representation to the detaining authority i.e., District Magistrate as well as to the Government against his detention. It is further stated that the Government after examining the detention order and material in support thereof has approved the aforesaid detention order passed by the detaining authority. The Government vide order dated 25.10.2022 after examining the opinion of the Advisory Board dated 17.10.2022, has also confirmed the order of detention and directed the detention of the petitioner for a period of six months in the first instance. It is further stated that the petitioner had made representation to the respondents and the same was forwarded to the Government for its opinion on 30.09.2022.
Learned counsel for the petitioner submits that the petitioner had never made any inflammatory speeches which goaded the youth to join terror ranks and further that the respondents did not decide the representation submitted by the petitioner against his order of detention. Learned counsel for the petitioner further submits that the he has instruction from the petitioner to submit before this Court an undertaking that he would not make inflammatory as well as anti-national speeches in any of his religious discourse.
Per Contra, Mr. Faheem Nisar Shah, learned GA has submitted that the order of detention has been validly passed by the respondentNo.2 as all the documents relied upon by the respondent No. 2 were provided to the petitioner as is evident from the execution report which is a part of the detention record. He further submits that all constitutional as well as procedural safeguards have been followed by the respondents at the time of issuance as well as executing the order of detention.
Heard learned counsel for the parties and perused the detention record.
The first contention raised by the petitioner that documents relied upon by the detaining authority at the time of passing of the detention order were not provided to the petitioner is belied by the execution report, which reveals that the detention order, notice of detention, grounds of detention, dossier of detention, copies of FIR and other related documents were provided to the petitioner at the time of execution of the order of detention i.e. on 19.09.2022.
It is also urged by the petitioner that he had made representation against the order of his detention, the fact which has been admitted by respondent No. 2 in its response by stating therein that the representation submitted by the petitioner against his order of detention was forwarded to the Government on 30.09.2022 but the same was never decided. This Court has perused the record of the detention and the perusal of the same substantiates the averments made by respondent No. 2 in its response that the representation submitted by the petitioner was forwarded to the Additional Chief Secretary, Home Department vide communication dated 30.09.2022. The record further depicts that the Government vide order dated 25.10.2022 has confirmed the order of detention and it is evident that the representation of the petitioner forwarded by respondent No. 2 to the Government has not been taken note of by the Government meaning thereby that the representation has remained undecided by the Government.
Law is well settled that non consideration of representation submitted by the detenue against his detention is violative of the constitutional as well as statutory rights of the petitioner. In Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, the Hon’ble Apex Court of India has held as under:
By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.
(emphasis added)
In view of the above, the order of detention, as such, is not sustainable on this ground only.
Further this Court finds that the grounds of detention prepared by the respondent No.2 are the exact replica of the contents of the dossier submitted by the S.S.P, Budgam to the respondent No.2 except for the cosmetic changes. The detaining authority is required to apply its mind independently in respect of the material placed before it so as to derive subjective satisfaction that it has become necessary to detain the petitioner and the detaining authority cannot act as a mouthpiece of the sponsoring authority. Reliance is placed upon the decision of Apex Court in case titled ‘Jai Singh v. State of J & K, reported in (1985)1 SCC 561’ and the relevant portion is reproduced as under:
“-------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 JaiSingh, 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 RamSingh, 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 it is not to be trifled with in this casual, indifferent and routine manner.”
Further, in ‘Rajesh Vashdev Adnani v. State of Maharashtra, (2005) 8 SCC 390’, the Hon’ble Apex Court quashed the order of detention, as the detention order was the verbatim reproduction of the proposal of the sponsoring authority. On this ground also, the order of detention is not sustainable and the same is required to be quashed.
In view of the above, this Court is of the considered view that the order of detention bearing No.DMB/PSA/45 of 2022 dated 16.09.2022 is not sustainable in the eyes of law. Accordingly, the same is quashed. The petitioner is directed to be released from the preventive custody provided his custody is not required in any other case. Further in view of the voluntary offer made by the petitioner to submit an undertaking, the petitioner is directed to furnish an undertaking before the District Magistrate concerned within a period of seven days from his release from the custody that he will not make inflammatory as well as anti-national speeches in his religious discourse.
The detention record be returned to the learned counsel for the respondents.