Danish Haneef Wani vs State Of J&K And Others

The petitioner through the medium of this petition filed through his father, has questioned order of detention bearing No. DMS/PSA/47/2019 dated

08.08.2019 issued by the District Magistrate, Srinagar, respondent No. 2 herein by virtue of which the petitioner has been detained in preventive

detention under the Jammu and Kashmir Public Safety Act, 1978 (for short the Act) in order to prevent him from acting in any manner prejudicial to

the security of the State (now Union Territory).

The order of detention has been assailed by the petitioner on following grounds:

i) the petitioner has neither been given copy of letter No. LGL/Det-3101/2019/4898-4901 dated 19.06.2019 nor any connected documents so as to

enable him to make an effective representation against the detention order to the competent authority.

ii) the detaining authority has no doubt informed that he can make a representation before the detaining authority or to the Government but no material

that has been relied upon by the detaining authority while passing the detention order, has been provided to him so as to enable him to file an effective

representation against the order of detention.

iii) the grounds of detention have not been read over to him, nor explained to the detenue in a language he understands fully.

iv) the allegations made in the grounds of detention are vague and subjective satisfaction while passing the detention order has not been derived by the

detaining authority. The detention order is neither approved within the statutory period nor has any reference has been made to the advisory board.

The respondents have filed the counter affidavit and have categorically stated that the procedural as well as statutory safeguards as enshrined

under Article 22(5) of the Constitution of India and section 13 of the PSA Act have been complied with by the respondents while passing the detention

order. The respondents 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. The respondents have also placed on record the execution receipt and the detention

order.

Mr. Syed Musaib, learned counsel for the petitioner has vehemently reiterated the same grounds those have been taken in his petition. Learned

counsel for the petitioner submits that the petitioner was already in custody at the time of passing of detention order and there is nothing on record to

demonstrate that the petitioner had filed any bail application, in which the bail could have been granted to him by the trial court, as such, there is no

subjective satisfaction on the part of the detaining authority that there is any necessity to detain the petitioner. He has further argued that no material

has been supplied to him so as to enable him to make an effective representation to the detaining authority against his preventive detention.

On the contrary, Ms. Saba Gulzar, learned counsel appearing for the respondents has vehemently argued that all the documents have been served

upon the petitioner. Ms. Saba Gulzar 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.

Heard and considered. I have perused the detention record meticulously.

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, it has been held by the Apex Court 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.

One of the contentions raised by the learned counsel for the petitioner is that the detaining authority has simply acted upon the dossier forwarded by

the respondent No. 3 and there was no material before the detaining authority, respondent No. 2 herein on the basis of which he has stated that there

is every likelihood of the petitioner being released on bail as the grounds of detention are absolutely silent as to whether any bail application had been

preferred by the petitioner or not. A perusal of the detention record reveals that only a passing reference has been made in the grounds of detention

on the basis of dossier submitted by the respondent No. 3 that the petitioner was arrested on 03.04.2019 and he is presently in the judicial custody and

there is every likelihood of him being released on bail. There is no reference either in the dossier or in the grounds of detention that any bail had been

preferred by the petitioner before the trial court. The absence of reference to any such application in the grounds of detention reveals that there was

virtually no subjective satisfaction on the part of the detaining authority with regard to that aspect. The impugned detention order, as such, is not

sustainable on this ground only. Reliance is placed upon the decision of Apex Court in “Rekha v. State of T.N.â€, reported in (2011) 5 SCC 244, in

which it has been held:

In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is

pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence

the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing

had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even

though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be

given, otherwise the bald statement of the authority cannot be believed.

Reliance is also been placed upon the judgment of the Supreme Court in Sama Aruna vs State of Talengana, 2018(12) SCC 150. Paragraph No. 27

is extracted here under:

There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody

in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the

year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail.

The other contention of the petitioner is that no material was furnished to the petitioner on the basis of which the detention order has been passed

by the detaining authority. A perusal of the execution report placed on record by the respondents as annexure R-1, reveals that only six leaves i.e. 01

leaf each of warrant and notice of detention and 02 leaves each of dossier and grounds of detention, total six leaves were furnished to the petitioner.

The detaining authority has relied upon an FIR registered against the petitioner while passing the detention order, but the same has not been supplied to

the petitioner so as to enable the petitioner 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

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 and 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.â€​

In view of the above, this petition is allowed. Detention order No. DMS/PSA/47/2019 dated 08.08.2019 is quashed. Petitioner (detenue) be set

free from the preventive custody provided he is not required in any other case.