District Magistrate Can Revoke Detention Order Before Government Approval: J&K HC

While ruling on a very significant legal point pertaining to the detention of a person, the Jammu and Kashmir and Ladakh High Court at Jammu in a most learned, logical, laudable, landmark and latest judgment titled Bashir Ahmed Naik vs UT of J&K and Ors in HCP No. 1/2023 CM No. 3303/2023 that was reserved on 18.03.2024 and then finally pronounced on 28.03.2024 has been most assertive in holding most vocally and unequivocally that the detaining authority under J&K Public Safety Act can revoke the order for detention of a person, unless the decision has already been approved by the government. We definitely need to note that the Single Judge Bench comprising of Hon’ble Mr Justice Sanjay Dhar also sought to point out that a District Magistrate after passing a preventive detention order against a person under the Public Safety Act is required to forward it immediately to the government for approval. What also must be mentioned here is that the Court was hearing a plea that had challenged the detention order that was passed by the District Magistrate of Ramban against a person accused of committing anti-national activities.

What also must be taken into consideration is that the petitioner named Bashir Ahmed Naik had challenged the detention order before the High Court on the ground that he was not informed about his right to make a representation before the detaining authority. The petitioner also alleged that the material on the basis of which the grounds of detention were formulated had not been completely furnished to him. On the contrary, the State while firefighting the charges countered the arguments by vehemently arguing that all the statutory and constitutional safeguards had been followed while passing the detention order.

To be sure, the Court after perusing the records of the case and considering the submissions made by both the sides found that Bashir had not been informed about his right to make a representation against the order of detention before the detaining authority. It noted that the District Magistrate of Ramban had only told him about making a representation before the government. In this regard, we need to note that the Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar relied upon an earlier most relevant and remarkable judgment of a Division Bench of this Court in the case of Tariq Ahmad vs State of J&K and Ors 2017 (3) JKJ 684 wherein it was held clearly that non-communication of the fact that the detainee can make a representation to the detaining authority till the government’s approval, would constitute an infraction of valuable constitutional rights.

By the way, it must be borne in mind that the Court also further pointed out that, “It has been further held that such non-communication would invalidate the order of detention.” The Court also observed that the detention order had been approved by the government six days after it was passed by the District Magistrate. The Court also made it henceforth clear that there is nothing on record to show that the District Magistrate did inform the petitioner about his right to make a representation before the said authority though he did address a communication to the detenue that he has a right to make a representation to the Government. But this is definitely just not adequate as he was not fully informed as ideally should have been done thus violating a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978 as pointed out earlier also in the landmark judgment of Tariq Ahmed (supra). No wonder, the Court very rightly found it to be a fit case to quash the detention order on this ground alone.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjay Dhar sets the ball in motion by first and foremost putting forth in para 1 that, “Through the medium of instant petition, the petitioner has challenged order No.44/PSA of 2023 dated 19.05.2023 passed by passed by respondent No. 2, District Magistrate, Ramban (hereinafter to be referred as “the detaining authority”), whereby the petitioner, Bashir Ahmed Naik S/o Ghulam Rasool Naik, (for short “the detenue”) has been taken into preventive custody in order to prevent him from acting in any manner prejudicial to the maintenance of public order.”

To put things in perspective, the Bench envisages in para 2 that, “The impugned detention order has been challenged by the detenue on the grounds that same suffers from non-application of mind as the grounds of detention are verbatim copy of the police dossier. It has been contended that grounds of detention were never explained to the petitioner in the language he understands. It has been submitted that the petitioner studied only upto 8th standard and was not able to understand the English language, in which the grounds of detention have been formulated. It has been further contended that the petitioner was not informed about his right to file a representation against the impugned order of detention before the detaining authority, which has prevented him from making a representation against the order of detention. It has also been contended that the impugned order of detention suffers non-application of mind as the detaining authority has used the expressions “public order” and “security of the State” interchangeably. Lastly, it has been contended that whole of the material relied upon by the detaining authority for formulating the grounds of detention has not been provided to the petitioner.”

As we see, the Bench then lays bare in para 3 that, “The respondents have filed the counter affidavit in order to contest the petition. In their counter affidavit, the respondents have submitted that the petitioner has remained involved in anti-national activities and was arrested in the year 1993. It has been further contended that the petitioner’s name figures in the list of OGWs. It is being alleged that brother-in-law of the petitioner had crossed over to POK/Pakistan in the year 1999 with whom the petitioner is in constant contact. It has been submitted that the petitioner was passing on information regarding the activities of the security forces to the Pakistan based terrorists. According to the respondents, reports in this regard have been entered in the daily diary of Police Post, Khari of District Ramban on 11.05.2023, 12.05.2023, 13.05.2023, 14.05.2023 and 15.05.2023. It has been further contended that all the statutory and constitutional safeguards have been adhered to by the respondents while passing the impugned order of detention. It has been contended that the grounds of detention have been explained to the petitioner in the language he understands and that whole of the material on the basis of which the grounds of detention have been formulated, has been furnished to the petitioner. In order to lend support to their contentions, the respondents have produced the detention record.”

Needless to say, the Bench states in para 4 that, “I have heard learned counsel for the parties and perused the pleadings and the record produced by the respondents.”

Do note, the Bench notes in para 5 that, “The first ground that has been urged by the learned counsel for the petitioner is that the petitioner has not been informed about his right to make a representation against the order of detention before the detaining authority. A perusal of the record shows that District Magistrate, Ramban, the detaining authority has given notice of detention to the petitioner vide his communication dated 19.05.2023, whereunder the petitioner has been informed that he may make a representation before the Government against the said order. In terms of said communication, the petitioner has not been informed about his right to make a representation before the District Magistrate, who has passed the impugned order of detention.”

It is worth noting that the Bench notes in para 6 that, “Sub-section (2) of Section 8 of the Jammu and Kashmir Public Safety Act provides that a detention order can be passed by a District Magistrate and Sub-section (4) of Section 8 of the Act provides that when any such order is made by the District Magistrate, he shall forthwith report the fact to the Government together with the grounds on which the order has been made. It also provides that such an order shall not remain in force for more than twelve days after the making thereof unless in the meantime, the order is approved by the Government. Thus, an order of detention made by a District Magistrate is required to be approved by the Government not later than 12 days from the date of order.”

Be it noted, the Bench notes in para 7 that, “In terms of Section 21 of the General Clauses Act, 1897, power to make an order includes power to add to, amend, vary or rescind, notifications, orders, rules or bye laws. Thus, an authority which is vested with jurisdiction to make an order is empowered to add to, amend, vary or rescind such an order. Therefore, the District Magistrate, who is empowered to make the order of detention, is also empowered to revoke it till such time it is not approved by the Government.”

Most forthrightly, the Bench points out in para 8 that, “Adverting to the facts of the present case, the impugned detention order was made by the respondent-District Magistrate, Ramban on 19.05.2023 and the same was approved by the Government on 25.05.2023. During this period i.e. 19.05.2023 to 25.05.2023, District Magistrate, Ramban was vested with jurisdiction to revoke the said order but there is nothing on record to show that the District Magistrate did inform the petitioner about his right to make a representation before the said authority, though he did address a communication to the detenue that he has right to make a representation to the Government. In view of this, the petitioner has been deprived of his right to make a representation before the detaining authority.”

Most significantly, the Bench while stating the most relevant case law enunciates in para 9 mandating that, “A Division Bench of this Court in the case of Tariq Ahmad vs. State of J&K and Ors. 2017 (3) JKJ 684 has, while dealing with a similar issue, held that non-communication of the fact that the detenue can make a representation to the detaining authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. It has been further held that such non-communication would invalidate the order of detention.”

To be sure, the Bench then holds in para 10 that, “On this ground alone, the impugned order of detention deserves to be quashed.”

As a corollary, the Bench then directs and stipulates in para 11 that, “Viewed thus, the petition is allowed and impugned order No. 44/PSA of 2023 dated 19.05.2023 passed by the District Magistrate, Ramban is quashed. The detenue is directed to be released from the preventive custody, provided he is not required in connection with any other case.”

Finally, the Bench then concludes by holding in para 12 that, “The record, as produced, be returned to the learned counsel for the respondents.”

All told, it is the bounden duty of all the Courts in India to always strictly abide by what the Jammu and Kashmir and Ladakh High Court at Jammu has held in this leading case and act accordingly in similar such cases. We thus see that the Court has made it indubitably clear that the District Magistrate can revoke the detention order before government approval. There can be no gainsaying that the Court thus very rightly upheld the Constitutional right of the petitioner as stated in Article 22(5) of Constitution and so also under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.