Ghulam Jeelani Gatoo vs State Of Jammu & Kashmir And Anr

1) Challenge in this petition is to order No.129/DMS/PSA/2018 dated 05.09.2018, passed by District Magistrate, Shopian-respondent No.2 herein, whereby Shri Ghulam Jeelani Gatoo @ Jela Gatoo son of Late Abdul Aziz Gatoo resident of Malik Mohalla Shopian (hereinafter referred as the detenue), in exercise of powers conferred under Section 8 of the J&K Public Safety act, has been ordered to be taken into preventive custody.

2) The petitioner's case, as set out in the petition, is that the detenue, was arrested by the security forces and was taken to Police Station, Shopian, where he was kept in illegal custody for several days. Thereafter detenue was implicated in FIR No.30/2018. The detenue applied for bail which was granted but he was not released and instead was taken into custody in connection with case FIR No.168/2017 and FIR No.36/2018 in which he applied for bail which also was granted but he was not released and instead was shifted to Central Jail, Kotebalwal pursuant to impugned detention order. The respondents are stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, non-existent and unfounded. Non application of mind in passing the impugned order has also been pleaded in the writ petition.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition. They have stated that the provisions of the Public Safety Act have been followed and the detenue has been detained only after following due procedure prescribed in terms of Public Safety Act. The grounds of detention were explained to the detenue in the Urdu and Kashmiri language. There has been proper application of mind for detaining the detenue. The detenue has been provided all the material which was considered by the detaining authority while passing the impugned order. In the ends, it has been prayed that the petition may be dismissed with costs. Learned counsel for the respondents has produced the detenue record so as to lend support to the stand taken in the counter affidavit.

4) Heard, perused the records and considered.

5) Firstly, learned counsel for the petitioner would contend that the detenue has been deprived from making an effective representation against his detention as the material forming base of the detention has not been supplied to him.

6) In opposition learned counsel for the respondents would contend that the material/documents, based on which detaining authority has derived subjective satisfaction for passing the order of detention, have been supplied to the detenue and besides this, the narrations of acts of the detenue has also been given in the grounds of detention, therefore, detenue, in any way has not been prejudiced or disabled from making a representation.

7) The detention record, as produced, carries a copy of receipt of grounds of detention which shows that order of detention (01 leaf), grounds of detention (06 leaves) along with other documents (13 leaves) in total 21 leaves have been supplied to the detenue, without spelling out what are these other documents have been provided to the detenue. In the grounds of detention, detenue has been shown involved in as many as 13 FIRs. Involvement of the detenue in aforementioned criminal cases appears to have heavily weighed with the detaining authority while passing detention order. In the grounds The respondents have not brought anything on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161/164-A Cr. P. C and other material collected in connection with investigation of aforesaid cases were ever supplied to the detenue. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue. If the detenue is not supplied the material on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention. The failure on the part of detaining authority to supply material renders detention order illegal and unsustainable. While holding so, I draw support from Dhananjoy Dass v. District Magistrate (AIR 1982 SC 1315). Sophia Ghulam Mohd. Bham v. State of Maharashtra and others (AIR 1999 SC 3051) and Thahira Haris Etc. Etc. v. Government of Karnataka & Ors. (AIR 2009 SC 2184).

8) Next it is contended that the detenue had been admitted to bail in various FIRs which fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another" reported in AIR 1987 SC 137:-

"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"

9) Learned counsel for the petitioner also contended that the detaining authority has not applied its mind as the grounds of detention are replica of dossier, therefore, order impugned is illegal and so liable to be quashed.

10) While going through the material before me, the ground projected appears to be forceful. The grounds of detention are replica of dossier with interplay of words here and there, which exhibits non-application of mind, in the process deriving of subjective satisfaction has become a causality. The Hon'ble Apex Court in the judgment rendered in the case of "Jai Singh and ors vs. State of J&K" (AIR 1985 SC 764) has held as under:

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ......."

Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."

11) In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the aforesaid grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

12) Taking conspectus of the aforesaid discussion, petition is allowed, order No. 129/DMS/PSA/2018 dated 05.09.2018, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

13) The Registry shall return the detention record to the learned counsel for the respondents Pronounced today in terms of Rule 138(3) of J&K High Court Rules, 1999.