Ghulam Mohammad Sheikh vs Govt. Of J&K & Ors

Sanjay Dhar, J

1) Impugned in this petition is order No.24/DMB/PSA of 2021-22 dated 14.01.2022, issued by District Magistrate, Bandipora-respondent No.2 herein, in terms whereof, Gh. Mohammad Sheikh son of Gh. Ahmad Sheikh resident of Ashtangoo Tehsil Aloosa District Bandipora (hereinafter referred to as the detenue), has been ordered to be taken into preventive custody and lodged in Central Jail, Jammu (Kot Bhalwal).

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague and non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the Statutory procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner.

3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of the detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all the statutory requirements and constitutional requirements have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have placed reliance on the judgments of the Supreme Court in Hardhan Saha v. State of W.B (1975) 3 SCC 198, Borjahan Gorey vs. State of WB, (1972) 2 SCC 550, Abdul Aziz vs. District Magistrate, Burdwan, (1973) 1 SCC 301, Debu Mahato vs. State of WB, AIR 1974 SC 816 and Ashok Kumar vs. Delhi Administration and others, AIR 1982 SC 1143. In order to buttress the contentions raised in the counter affidavit, the respondents have produced the detention record.

4) Heard learned counsel for the parties and perused the detention record.

5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the detenue was not furnished the whole of the material so to enable him to make an effective representation against his detention.

6) A perusal of the material on record reveals that the petitioner has received copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related documents (Nil) (total 05 leaves), in token whereof, his thumb impression has been obtained on the execution report as also on the document ‘receipt of grounds of detention and other relevant record’, which form part of the detention record. Nothing has been brought on record to indicate that the copy of the police dossier has been furnished to the detenue. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue.

7) Apart from the above, if we have a look at the grounds of detention, it bears reference to five FIRs viz. FIR Nos.217/2010, 243/2013, 160/2016, 174/2016 and FIR No.199/2021, all registered with Police Station, Bandipora. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded under Section 161/164 of the Cr. P. C during investigation of aforesaid FIRs as well as the other material on the basis of which petitioner’s involvement in the said FIR is shown, particularly when the petitioner is not nominated in these FIRs. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record.

8) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention order is based, is supplied to him. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in 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.

9) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, unless, of course, he is not required in connection with any other case.

10) The detention record be returned to learned counsel for the respondents.