Without any iota of doubt, the Jammu and Kashmir High Court has very rightly, remarkably and rationally in a latest, learned, laudable and landmark judgment titled Wasim Ahmad Trag v/s Union Territory of J & K and another in WP (Crl.) No. 12/2021 that was reserved on 4 June, 2021 and then finally delivered on July 15, 2021 while setting free a detenu from preventive custody has held that the procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with. A Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court made it clear that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be apprised here that the petitioner in this noteworthy case had challenged the order of preventive detention which was passed against him while he was in custody in connection to alleged commission of offences under the NDPS Act.
To start with, the ball is set rolling in para 1 of this cogent, convincing and composed judgment authored by a Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court wherein it is put forth that, “Through the medium of this petition filed through his Uncle, the petitioner has questioned the order of detention bearing No. 01/DMP/PSA/2021 dated 02.01.2021 issued by the respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for short, the Act).”
To put things in perspective, the Bench then points out in para 2 of this judgment that, “It is stated in the petition that the petitioner was arrested by the Police of Police Station, Pulwama in the month of January, 2021 and was implicated in the FIR bearing No. 201/2020 for commission of offences under section 8, 21 and 29 of the NDPS Act by the Police Station, Pulwama. While the petitioner was in custody in the aforementioned FIR, the petitioner was ordered to be detained under the Act vide order dated 02.01.2021.”
While dwelling on the petitioner questioning the detention order, the Bench then enunciates in para 3 that, “The petitioner has questioned the order of detention inter alia on the ground that the petitioner has been detained on the basis of vague grounds and no prudent man can make a representation against such vague allegations and that the order of detention has been executed in the month of February, 2021 that after a delay of one month, no documents those have been relied upon by the Detaining Authority i.e. the respondent No. 2 herein have been furnished to the petitioner and the constitutional as well as procedural safeguards as envisaged by the Constitution of India as well as under the Act have not been complied with by the Detaining Authority.”
As against what is stated in para 3, the Bench then brings out in para 4 that, “The respondents have filed the response, in which they have stated that the petitioner has been detained pursuant to the order of detention and they have categorically stated that the procedural as well as statutory safeguards enshrined under Article 22(5) of the Constitution of India and section 13 of the Act have been complied with by the respondents while passing the detention order. They have further stated that they have supplied all the requisite documents to the petitioner so as to enable him to make an effective representation to the detaining authority and to the Government. Pursuant to the order of detention, the warrant was executed by the Executive Officer, Syed Jaffar of Police Station, Awantipura and the petitioner was handed over to the Superintendent of Central Jail, Jammu for lodgment. The contents of the detention order/warrant and the grounds of detention were read over and explained to the petitioner in the language he fully understood.”
To say the least, the Bench then notes in para 5 that, “The respondents have produced the soft copy of the detention record.” On the one hand, the Bench then envisages in para 6 that, “Mr. M. Ashraf Wani, learned counsel for the petitioner has vehemently reiterated the grounds those have been taken in his petition. He laid much emphasis only on the ground that the petitioner could not have been detained under the Act as the petitioner was implicated in the FIR bearing No. 201/2020 for commission of offences under sections 8, 21 and 29 of the NDPS Act and as the quantity of the contraband was commercial quantity, the petitioner could not have been granted bail, as such, the order of detention is bad in law as there was no likelihood for grant of bail to the petitioner.”
On the other hand, the Bench then mentions in para 7 that, “On the contrary, Mr. Mir Suhail, learned Additional Advocate General appearing for the respondents has vehemently argued that all the documents have been served upon the petitioner. Mr. Suhail has also argued that the detention order is legal and all procedural and statutory safeguards have been complied with while passing the order of detention, as such, the order of detention is sustainable in the eyes of law.”
Briefly stated, the Bench then observes in para 8 that, “Heard and perused the detention record meticulously.”
Quite remarkably, the Bench then very rightly observes in para 9 that, “Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B. K. Jha reported in (1987) 2 SCC 22, the Apex Court has held that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any, value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.”
Most remarkably and also most significantly, what forms the cornerstone of this brief, brilliant and balanced judgment is then elaborated upon in para 10 wherein it is postulated that, “From perusal of grounds of detention it reveals that the order of detention has been passed on the ground of the involvement of the petitioner in FIR bearing No. 72/2014 for commission of offences under sections 147, 148, 336, 435, 307, 353, 332 and 427 RPC, FIR bearing No. 78/2014 for commission of offences under sections 147, 148, 341, 336 and 427 RPC, FIR bearing No. 100/2015 for commission of offences under sections 148, 149, 341 and 336 RPC of Police Station, Tral and thereafter, the petitioner was found involved in FIR bearing No. 201/2020 of Police Station, Awantipora for commission of offences under sections 8, 21 and 29 of the NDPS Act as while driving a vehicle bearing registration No. JK01X 4920, the petitioner was found to be in possession of 17 bottles of Codeine Phosphate and 39 tablets of Spasmo Proxy-Von Plux, It is further stated that the petitioner is at present in custody and has applied for bail in the court of law. A perusal of the detention record reveals that the order of detention was executed on 03.02.2021 and notice of detention and contents of detention warrant and grounds of detention were read over to the petitioner in English and explained to him in the Urdu and Kashmiri language. A perusal of the execution report reveals that only four leaves i.e. one leaf of order of detention, one leaf of notice of detention and two leaves grounds of detention were furnished to the petitioner at the time of execution of warrant. However, the perusal of the grounds of detention reveals that the Detaining Authority has relied upon all aforementioned FIRs while passing the order of detention but none of the FIR has been furnished to the petitioner as is evident from the execution report and, as such the petitioner has been deprived of his right to make an effective representation against his preventive detention to the detaining authority as also to the Government. It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply the material relied upon by him, while passing the detention order renders it illegal. Reliance is placed upon the decision of Apex Court in Thahira Haris v. Govt. of Karnataka, reported in (2009) 11 SCC 438, the relevant para is reproduced as under: “30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.””
Adding more to it, the Bench then also points out in para 11 that, “Otherwise also, as the petitioner was found to be involved in carrying the commercial quantity of the contraband, so in ordinary course the petitioner could never have been granted bail under the NDPS Act. As such, this Court has no hesitation in observing that the satisfaction recorded by the respondent No. 2 that the court may grant bail in the instant case is without any basis.”
Finally, the Bench then holds in para 12 that, “In view of the above, this petition is allowed. Detention order No. 01/DMP/PSA/2021 dated 02.01.2021 is quashed. Petitioner (detenue) be set free from the preventive custody, provided he is not required in any other case.”
All said and done, it is the bounden duty of all the courts in our country to always strictly comply with what is the essence of the Jammu and Kashmir High Court judgment in this notable case that, “The procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with.” Thus a Single Judge Bench of Justice Rajnesh Oswal of the Jammu and Kashmir High Court in this case has very rightly held that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be adhered to in totality. The liberty and the constitutional rights guaranteed to a citizen under our Constitution is paramount and has to be protected always. This is what is the crux also of this notable judgment!
