Mohd Amin vs UT Of Jammu And Kashmir And Others

Sanjeev Kumar, J

1 This intra-Court appeal is directed against the judgment dated 30.01.2023 passed by the learned Single Judge of this Court [‘the Writ Court’] in WP(Crl) No. 29/2022 titled ‘Mohd Amin vs. UT of Jammu and Kashmir and others, whereby the Writ Court has declined to set aside the order of detention of the petitioner issued by the District Magistrate, Doda vide his No. 30/DM/DODA/PSA/2022 dated 28.06.2022.

2 Before we advert to the grounds of challenge urged by learned Senior Counsel appearing for the appellant, it is necessary to notice few relevant facts. On the basis of some material such as dossier and other connected documents, like copies of FIRs registered against the appellant, the District Magistrate, Doda vide his communication dated 28.06.2022 ordered detention of the appellant under Public Safety Act, 1978 [‘the Act’] with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Immediately on passing of the order of detention, the grounds of detention were served upon the appellant.

3 From a reading of the grounds of detention, it transpires that the activities, which the Detaining Authority found prejudicial to the maintenance of public order, are such, in respect of which, the Police Station Doda has already registered as many as 07 FIRs; one in the year 2012, one in the year 2014, two in the year 2016, one each in the years 2017, 2018 & 2021. All the FIRs have been registered for commission of offences under Sections 188 RPC read with Section 03 of Prevention of Cruelty to Animal Act. All the FIRs have been shown to have been investigated and concluded into presentation of challans before the competent Court of law. On the basis of allegations in the FIRs aforesaid, the Detaining Authority has come to the conclusion that the petitioner has been indulging in vandalism and wanton activities which can have serious consequences and potential of hurting the sentiments of a particular community. The appellant has been founded to be instrumental in creating law and order problem for the Administration. Be that as it is, the Detaining Authority recorded its satisfaction that, with a view to prevent the appellant from indulging in activities prejudicial to maintenance of public order, it was necessary and in public interest to place the appellant under preventive detention.

4 Feeling aggrieved by his detention, the appellant filed WP(Crl) No. 29/2012 before the Writ Court which was contested by the respondents by filing a counter affidavit. The Writ Court, after considering the rival contentions and having gone through the detention record, came to the conclusion that there was no ‘non-application of mind’ on the part of Detaining Authority and that the activities, the petitioner had been indulging in, had the potential of disturbing the public order. The Writ Court, therefore, upheld the order of detention passed by the Detaining Authority and dismissed the writ petition vide its judgment dated 30.01.2023. It is this judgment of the Writ Court which is impugned before us in this appeal.

5 The impugned judgment is assailed by the appellant on the ground that the detention order impugned before the Writ Court was an outcome of total non-application of mind and, therefore, not sustainable in law. The procedural formalities laid down under the Act, which are mandatory in nature, had not been complied with. The Writ Court, however, did not consider this aspect of the matter and dismissed the petition without assigning legally sustainable reasons.

6 Mr. Bhardwaj, learned Senior Counsel appearing for the appellant submits that the basis of the detention order is registration of 07 different FIRs against the appellant, out of which, six are old and stale and, therefore, could not have formed the basis of satisfaction arrived at by the Detaining Authority to place the appellant under preventive detention. Learned Senior Counsel would further submit that the challans pending against the appellant stood settled at the time of passing of the impugned order of detention, but the Detaining Authority has, in the grounds of detention, indicated that the cases have been challaned and pending adjudication in the Court of law. It is, therefore, submitted that the impugned order of detention passed by the Detaining Authority was completely without application of mind. It is also submitted that the offences registered against the appellant are minor offences and even if, one were to believe the Detaining Authority, the commission of these offences can, at best, be a law and order problem, but, cannot be said to have disturbed or has the potential of disturbing the public order. Mr. Bhardwaj, learned Senior Counsel has sought to draw distinction between the public order and the law and order problem. Lastly, it has been submitted that, against his detention, the appellant had made detailed representations to the District Magistrate, Doda, Additional Chief Secretary, Home and the Chairman, Advisory Board under the Act. These representations were made on 6.07.2022, but the same have not been considered by any of the Authorities.

7 Having heard learned counsel for the parties and perused the material on record, we are of the view that the impugned order of detention is not sustainable for more than one reason.

8 Indisputably, the only basis of issuance of order of detention is, registration of 07 FIRS against the appellant. Except FIR No. 39/2021, all the six FIRs are old and, therefore, should not have been relied upon by the Detaining Authority to record its satisfaction as to the necessity of placing the appellant under preventive detention to prevent him in any manner prejudicial to the maintenance of public order. All the FIRs have been registered under Sections 188 and 3 of Prevention of Cruelty to Animal Act. Both the offences are not very serious offences. Section 188 invites punishment of imprisonment for a period of two years. Similarly, Section 03 of Prevention of Cruelty to Animals Act invites punishment of imprisonment of three months. Otherwise also, we are in agreement with Mr. Bhardwaj, learned Senior Counsel appearing for the appellant that the activities attributed to the appellant may be a problem of law and order and cannot be, by any stretch of reasoning, construed to be a threat to public order.

9 It is true that the activities, the appellant has been indulging in, may have the potential of hurting the religious sentiments of a particular community, but, in absence of any evidence on record, that any of his acts have created even a problem of law and order, it is not possible to assume that the acts attributed to the appellant are likely to be prejudicial to the maintenance of pubic order. It is equally true that the appellant seems to be indulging in the forbidden activities since the year 2012, but he has been booked and challaned before the Court of law. It is the categoric submission of the appellant that, almost all the challans have been settled and he has been let off by payment of fine.

10 Admittedly, as is evident from the copies of representations, the appellant had represented against his detention, and his representations have not been considered by the respondents, inasmuch as, there is no mention with regard to the said representations in the objections filed by the respondents. It is the bounden duty of the Detaining Authority or the Government, as the case may be, to consider the representation of the detenu and pass appropriate orders thereon.

11 Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenu's representation as early as possible. Implicit in the right of detenu to make representation is right to have the same considered by the authority concerned. There should be no slackness, indifference and callous attitude in consideration of the representation of the persons who are detained. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal. Everyday delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference. In the instant case, we find that representations of the appellant have not been considered even belatedly.

12 The Supreme Court in the case of Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to refer the case of the detenu along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. Therefore, it is implicit in clauses (4) and (5) of Article 22 that the Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. In Pankaj Kumar Chakrabarty and ors vs State of West Bengal, 1970 AIR 97, a Constitution Bench of Supreme Court has already settled the legal position in the following words:

“It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions `as soon as may be' and `the earliest opportunity' in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned, it can only be the detaining authority to whom it is to be made which has to consider it. Though clause (5) does not in express terms say so, it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Abdul Karim's case, AIR 1969 SC 1028, show that clause (5) of article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case, the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsel's contention were right, the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation, clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view, it is clear from clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and

(2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If, in the light of that representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion."

In view of the above settled proposition of law, we are of the view that non-consideration of the detenu's representation constitutes violation of the constitutional right given under Article 22 of the Constitution. Therefore, for this reason alone, writ petition should have succeeded. Though, the aforesaid vital plea was raised before the Writ Court, however, the same has not been dealt with by the Writ Court. The Writ Court has, therefore, erred in declining to quash the order of detention of the appellant.

14 For the foregoing reasons, this appeal is allowed and the impugned judgment passed by the Writ Court is set aside. Consequently, the detention order dated 28.06.2022 (supra) is quashed. The Jail Superintendent concerned is directed to release the appellant from the preventive detention forthwith, if his detention is not required in connection with any other criminal case pending against him.