Case title:
Tanveer Ahmed vs Union Territory of J&K
Date of Order:
25th May 2023
Bench:
Justice M R Shah and C T Ravikumar
Parties:
Petitioner: Tanveer Ahmed
Defendant: Union Territory of J&K
Facts:
- Through the current petition, the contested detention order has been contested on the grounds that it violates Section 13(1) of the J&K Public Safety Act, 1978, as well as Article 22(5) of the Indian Constitution.
- It was the petition used to dispute the detention before the court. The government, however, reversed the aforementioned detention order on April 12, 2020, under Govt. Order No. Home/PB-V/973 of 2020.
- The respondent no. 2 issued another detention order with Order No. DMR/PSA of 1653-58 dated 09.07.2021 in which the petitioner was once more imprisoned under the PSA on fictitious and unfounded claims. In the case Tanveer Ahmed v. UT of J&K & Ors, WP(Crl) No.16/2021, the petitioner contested the aforementioned detention order. The detention order from September 7, 2021, was annulled by the Court after review of the issue in an order dated April 1, 2022.
- Further stated in the petition is that the petitioner has now been held for a third time on the same grounds and that the third detention order is simply a verbatim copy of earlier detention orders. This third detention order, dated 04.06.2022, was issued by the same detaining authority. Additionally, it is claimed that neither the petitioner poses a threat to public order, nor has he committed any crimes that have upset society as a whole.
- Additionally, it is claimed that the petitioner has been booked under PSA by the respondents despite there being no new evidence on file. The detaining authority respondent No. 2 is alleged to have made no specific allegations against the detenue, according to the petition.
Issue raised:
The question was raised whether it is correct to book petitioner under PSA by the respondents?
Arguments:
- When being heard, the detainee's knowledgeable attorney brings up the detention's grounds and claims that, upon first glance, it is obvious that they are ambiguous. It is further argued that the Detaining Authority made the contested detention order without exercising due diligence or weighing the accusations made against the detenue in the aforementioned dossier, a copy of which was not even given to the detenue, and on the basis of which the detenue was detained and instructed to be lodged at Central Jail, Jammu.
- As nothing specific has been indicated in the grounds for custody, which are essentially a photocopy of the grounds used in the earlier detention order, skilled counsel further argued that the accusations made against the detenue are completely ambiguous.
- When being heard, the detainee's knowledgeable attorney brings up the detention's grounds and claims that, upon first glance, it is obvious that they are ambiguous. It is further argued that the Detaining Authority made the contested detention order without exercising due diligence or weighing the accusations made against the detenue in the aforementioned dossier, a copy of which was not even given to the detenue, and on the basis of which the detenue was detained and instructed to be lodged at Central Jail, Jammu.
- In response, the learned Sr. AAG asserts that the detention order was made based on subjective satisfaction by the detaining authority and that in cases involving drug trafficking, preventive detention can be ordered in anticipation of the satisfaction that the subject will engage in activities that can disturb the public order. The petitioner claims that there was no application of mind by the detaining authority. She further claims that the record shows the reasons for the detention were not ambiguous.
- Before considering the opposing claims made by the parties, it is important to keep in mind that the procedural requirements are the only safeguards available to the detenue since the Court is unable to override the subjective judgement of the detaining authority, as stated by the Hon'ble Apex Court in the case Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha & Anr., published as (1987) 2 SCC 22. Therefore, the procedural criteria must be properly followed if any value is to be placed on the subject's freedom and the constitutional rights that are granted to him in that regard.
- The detention of the detenue was ordered based on five FIRs, of which only one, FIR No. 17/2021, was registered in the year 2021 for an offence punishable under Sections 8/21/22 of the NDPS Act. As a result, all but one of the cases did not coincide in time with the detention order, and the most recent FIR also does not reveal any heinous offence. The alleged illegal activity of the detenue must be the direct and live relationship between the detenue's prior behaviour and the necessity of detention.
- Reproducing the Senior Superintendent of Police Ramban's dossier almost word for word in the detention order, repeating it in the third detention order, not providing the entirety of the record upon which the detention order was based, providing the material in English rather than the detenue's native language, and not informing the detenue of his right to make representation before the detaining authority or the government are all indications that the detaining authority acted improperly.
Analysis:
- In this case the petitioner was punishable for detenue by the respondent.
- There was no exact evidence produced before the court for the detention order of the accused by the respondent.
- It follows logically that the detaining authority should have informed the detainee about the grounds of detention the time limit in which he could make a representation to it, i.e., until the approval of the detention order.
- This is another reason why the impugned order would be void since the detainee's right to make a representation to the detaining authority was only available to him until the approval of the detention order by the Government.
- After listening to the claims and other counter claims of both the parties the court concluded that the petitioner should be released from custody.
Conclusion:
In the above case, the High court of Kashmir concluded that the petitioner and detenue's fundamental right to effectively and meaningfully protest the detention order before the detaining authority and the government has been violated. The appellant was released from preventive custody in this case
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