Fayaz Ahmad Paul vs State Of Jammu And Kashmir Others

Sanjeev Kumar, J

Impugned in this petition is the Order no.DMB/PSA/20 of 2019 dated 01.04.2019, passed by the District Magistrate, Budgam (for short "detaining authority"), placing one Fayaz Ahmad Paul son of Abdul Gaffar Paul resident of Ompora Budgam (for brevity "detenu") under the preventive detention to prevent him from acting in any manner prejudicial to the security of the State.

Counter affidavit has been filed by respondents, vehemently resisting the petition. The detention record has also been produced by the learned counsel for the respondents to substantiate the statements made in the reply affidavit.

Having heard learned counsel for parties and perused the file, it would be appropriate to have glimpse of the detention record, produced by the learned counsel for respondents, so as to ascertain as to whether the material, relied upon by detaining authority while issuing impugned detention order, has been furnished to detenu or not. The detention record, inter alia, contains an "Execution Report" of the detention. Perusal thereof reveals that execution report has been signed by Executing Officer by ASI Bashir Ahmad No.190/GRPK (EXK.821674) DPL Budgam P/S Budgam, as also by the Taken-over Officer, viz. Dy. Superintendent, District Jail, Kathua. It also comes to fore that only seven leaves have been given to detenu and the material, viz. copies of FIRs; Dossier; copy of site plans; copy of seizure memos; copy of arrest memo; statement of witnesses; and other related documents, have not been furnished to detenu at the time of execution of detention order or immediately thereafter.

Bare reading of impugned detention order divulges that Superintendent of Police, Budgam, vide his letter no.Legal/Dos/2019/148 dated 14.03.2019, produced the material record, such as dossier and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention make reference of as many as 08 cases, bearing FIR nos.310/2009; 261/2009; 575/2009; 115/2012; 102/2012; 339/2013; 188/2016; 277/2016, to have been registered against detenu. The involvement of the detenu in the aforesaid cases appears to have weighed with the detaining authority, while making the detention order. The record, as noted above, does not indicate that the copies of the aforesaid First Information Reports, the statements recorded under Section 161 Cr.P.C. and other material collected in connection with the investigation of the aforesaid cases, were ever supplied to the detenu. The abovementioned material, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehension concerning the activities of the detenu are baseless and misplaced. If the detenu is not supplied the material, on which the detention order is based, he cannot be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. While saying so, I draw the support from the law laid down in Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others, (supra); and Syed Aasiya Indrabi v. State of J&K & ors, 2009 (I) S.L.J 219.

A strong contention has been made by counsel for petitioner. He has stated that the detenu has been acquitted in 06 cases, viz. FIR nos. 261/2009, 310/2009, 236/2010, 575/2010, 102/2012 and 115/2012, and that the detaining authority, while making reference to these FIRs, has not even made a whisper about detenu having been acquitted in all those cases, which, in essence, reflects non-application of mind on behalf of detaining authority.

I have gone through the grounds of detention carefully. While passing the detention order, the detaining authority has based its decision on as many as 08 FIRs, and therefore, it was obligatory upon the Superintendent of Police, Budgam, to report about the acquittal of detenu in 06 cases out of 08 cases to the detaining authority, for , it cannot be disputed that the fact of acquittal of detenu in 06 cases, would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Since admittedly the aforesaid vital facts, which would have influenced the mind of detaining authority one way or the other, were neither placed before nor considered by the detaining authority, it must be held that there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority, thereby rendering the impugned order of detention invalid and illegal. My views are fortified by the judgements rendered by the Supreme Court in the cases of Ashadevi v. K. Shivraj & another, 1979 (1) SCC 222; Adishwar Jain v. Union of India and another, 2006 (11) SCC 339; V. C. Mohan v. Union of India, AIR 2002 SC 1205; P. Saravanan v. State of Tamil Nadu and others, 2001 (10) SCC 212; Ahmed Nassar v. State of Tamil Nadu and others, 1999 (8) SCC 473; Sita Ram Somani v. State of Rajasthan, AIR 1986 SC 1072; Union of India and others v. Manoharlal Narang, 1987 (2) SCC 241; and A. Sowkath Ali v. Union of India and others, 2000 (7) SCC 148.

It is pertinent to mention here that the preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme Court in the case of V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time-consuming in 'curbing the evil he spreads', is illegal and that the detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to the normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities, affecting security of the State, and that there was no other option except invoking the provisions of the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. The preventive detention involves the detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes which the detenu may have committed. After all, the preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha v. State of Tamil Nadu & another, (2011) 5 SCC 244 and V. Shantha v. State of Telangana (supra) and Sama Aruna v. State of Telengana AIR 2017 SC 2662.

For the foregoing reasons, petition is disposed of and detention Order no.DMB/PSA/20 of 2019 dated 01.04.2019, passed by District Magistrate, Budgam, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.