Radhey Sham @Shamu vs UT of Jammu and Kashmir

Rajnesh Oswal, J

This petitioner has challenged the detention Order No. 07/PSA of 2024 dated 26.03.2024 (for short ‘the impugned order’) passed by respondent No. 2 (for short ‘the detaining authority’) under Section 8 of Jammu and Kashmir Public Safety Act 1978 on the following grounds:-

(a) That the alleged incident against the detenue was an offence against an individual, which affected law and order but it does not affect public order.

(b) That the documents provided to the petitioner were not legible, as such, he could not make an effective representation before the authorities against the order of detention.

(c) That the order impugned deserves to be quashed on the ground that the order impugned nowhere mentions that the petitioner had applied for the bail but the same was rejected.

(d) That the petitioner was not informed about his right to make a representation against the order of detention to the detaining authority.

(e) That the petitioner was not informed the grounds of detention in the language understandable by him.

Counter affidavit has been filed by respondent No. 2. It is stated that respondent No. 3 requested respondent No. 2 to detain the petitioner in view of his continuous and repeated involvement in criminal activities which were considered prejudicial to the maintenance of the public order. The petitioner was accused in FIR No. 92/2023 under Sections 307/323/148 IPC, 4/25 Arms Act of P/S Ramgarh. The petitioner as well as his mother was informed by respondent No. 2 about the detention of the petitioner. The petitioner was provided with the order of detention, copies of the dossier, grounds of detention and the other documents. These documents were read over to him in English and explained in Urdu, Hindi and Dogri languages which the petitioner fully understood. In nutshell, stand of respondent No. 2 is that after examining the whole of the material submitted by respondent No. 3, it was felt necessary to detain the petitioner under the Act for maintenance of public order because his activities were posing threat to the maintenance of the public order. The detention order was executed by Inspector Jaswinder Singh of P/S Ramgarh and in the execution report, it is stated that the grounds of detention were read over in English to the petitioner and explained in Urdu, Hindi and Dogri language, which the petitioner fully understood and in token thereof, his signatures were also obtained and receipt was also taken from Assistant Superintendent, District Jail, Kathua. The petitioner was also informed of his right to make a representation to the Government against the order of detention. The Home Department vide Government Order No. Home/PB-V/622 of 2024 dated 03.04.2024 approved the order of detention and the order of detention has also been confirmed by the Government vide Government Order No. Home/PB-V/1191 of 2024 dated 03.06.2024.

Learned counsel for the petitioner has argued that the material relied upon by the detaining authority was not provided to him and the order impugned is classic example of non application of mind as the detaining authority has not mentioned in the grounds of detention that the petitioner had moved bail application which was dismissed by the Court of learned Chief Judicial Magistrate.

Per contra, Mr. Rajesh Kumar Thappa, learned AAG has argued that all the constitutional and procedural safeguards have been complied with not only at the time of passing of the detention order but also at the time of execution of the detention order. He further laid stress that the detention order was approved by the Government within stipulated period and confirmed as well within prescribed period under the Act.

Heard learned counsels for the parties and perused the detention record.

It was contended by the petitioner that the grounds of detention were not read over and explained to him in the language which he fully understood.

A perusal of the grounds of detention reveals that FIR No. 92/2023 under Sections 307/323/148 IPC and 4/25 Arms Act was registered with Police Station, Ramgarh and the allegations levelled against the petitioner are that he alongwith his associates attacked one person, namely, Pankaj Sharma S/o late Tara Chand R/o Shehzadpur District Samba with sharp edged weapons, who was lying near Govt. Primary School, Shehzadpur Tehsil Ramgarh, District Samba in injured condition. In the grounds of detention, it is also mentioned that the challan has been produced before the court on 28.02.2024 and the petitioner is lodged in District Jail, Kathua. It is also stated in the grounds of detention that the petitioner is a notorious criminal, who repeatedly indulges in criminal activities and there is apprehension that he may again indulge in criminal activities and create insecurity and panic among the peace-loving people of the area as he has close links/association with other notorious criminals.The detention record produced by the respondents, contains the Execution Report and the Receipt of Grounds of Detention signed by the petitioner in English, demonstrating that 45 leaves comprising of detention warrant, grounds of detention and other documents were provided to the petitioner and contents whereof, were read over to the petitioner in English and explained in Hindi, Dogri and Urdu languages, which he fully understood. Thus, there is no force in the contention raised by the petitioner that the documents relied upon by the Detaining Authority for detaining the petitioner were not provided to him to file an effective representation.

It is stated by the petitioner that he had filed an application for grant of bail but the same was rejected vide order dated 27.02.2024 and to substantiate this contention, the petitioner has placed on record the order dated 27.02.2024 passed by the learned Chief Judicial Magistrate, Samba. The order of detention has been passed pursuant to the dossier dated 20.03.2024 of the respondent No.3 meaning thereby that application for grant of bail was dismissed prior to the submission of the dossier by the respondent No. 3 to respondent No. 2. Respondent No. 3 though has mentioned in the dossier that the petitioner has applied for bail but has not brought to the notice of the respondent No.2 that the bail application was dismissed vide order dated 27.02.2024. The respondent No.3 ought to have brought to the notice of the respondent No.2 the factum of rejection of bail vide order dated 27.02.2024, which has not been done in the instant case. Had the sponsoring agency brought to the notice of respondent No. 2 the factum of rejection of bail, respondent No. 2 could have opined otherwise than detaining the petitioner under the Act (supra). On this ground alone, the order of detention is not sustainable in the eyes of law.

In view of the above, the detention Order No. 07/PSA of 2024 dated 26.03.2024 passed by respondent No. 2 is quashed. The petitioner be released forthwith from custody, if not required in any other case.

The detention record be returned back to Mr. Rajesh Kumar Thappa, AAG.

Disposed of.