Irshad Ahmad Dar vs State Of J&K And Others

Through the medium of this petition, the petitioner has challenged order of detention bearing No. 97/DMB/PSA (F)/2020 dated 20.06.2020 issued by

the respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for

short the Act).

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

i) That the petitioner was arrested on 01.06.2020 by the Police of Police Station, Warpora at Zamgir Sopore in case FIR No. 131/2020 dated

01.06.2020 and the petitioner had not moved any bail application.

ii) That the detention order is violative of the procedural and statutory safeguards enshrined under Article 22 (5) of the Constitution of India.

iii) That the petitioner has been falsely implicated, as the petitioner had made a press conference and uploaded some pictures of Forest

Department’s employees, who were indulging in smuggling activities as a result of which false and frivolous FIR has been lodged against the

petitioner and the petitioner has been detained.

iv) That the detaining authority has not supplied the material that has been relied upon by the detaining authority while passing the detention order.

v) That the detention order has neither been approved nor reference has been made to the Advisory Board.

vi) That the petitioner was already in custody of the Police at the time of passing the impugned detention order and the order of detention has been

passed without following the procedural safeguards enshrined under Article 22(5) of the Constitution of India.

The respondents have filed the counter affidavit and have categorically stated that the procedural as well as statutory requirements under Article

22(5) of the Constitution of India as well as section 13 of the Act have been complied with by the respondents while passing the detention order. They

have further stated that all the requisite documents were provided to the petitioner.

It is further stated by the respondents that keeping in view the timber smuggling activities of the detenue (petitioner) and because of the

apprehension of bail being granted to the petitioner, on 20.06.2020 an order was passed to stop the petitioner from indulging in timber smuggling

activities.

Mr. Gulzar Ahmad Sopori, learned counsel for the petitioner has vehemently reiterated the same grounds those have been taken in his petition.

On the contrary, Mr. Asif Maqbool, learned Deputy Advocate General appearing for the respondents has vehemently argued that all the documents

have been served upon the petitioner. Mr. Maqbool has also argued that the detention order is legal and all constitutional safeguards have been

complied with while passing the order of detention. Mr. Maabool has also sent the scanned detention record.

From the perusal of the Execution receipt that forms the part of detention record, it is revealed that the detention order dated 20.06.2020 was

executed on 27.06.2020 at Central Jail Kotbhalwal, Jammu and Mr. Irshad Ahmad, ASI executed the same. The perusal of the execution report

reveals that the contents of the detention warrant along with grounds of detention were read over in English to the petitioner and also explained to him

in Kashmiri language. Notice of detention (one leaf), copy of warrant (one leaf) and grounds of detention (two leaves), total four leaves were handed

over to the petitioner. Likewise, in receipt of grounds of detention also, it is categorically stated that the petitioner has received four leaves only those

included notice of detention (one leaf), copy of warrant (one leaf), grounds of detention (two leaves). Perusal of the grounds of detention reveal that

while preparing the grounds of detention, detaining authority i.e. respondent No. 2 has relied upon five FIRs but the same have not been supplied to the

petitioner and this disabled the petitioner to make an effective representation against the order of detention to the detaining authority and also to the

Government. Thus, non furnishing of all the documents those have been relied upon by the detaining authority while issuing the detention order, to the

petitioner has resulted in denial to the petitioner of his right guaranteed under Article 22(5) of Constitution of India as well as section 13 of the Act to

make effective representation to the detaining authority and also to the Government against his preventive detention. It is only after the detenue is

supplied all the material that has been relied upon by the detaining authority, that he can make an effective representation to the Detaining Authority

and also to the Government. 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 s 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€​

On this ground only, the impugned detention order is not sustainable. So there is no need to consider the other grounds of challenge.

In view of the above, this petition is allowed. Detention order No. 97/DMB/PSA (F)/2020 dated 20.06.2020 is quashed. The petitioner (detenue) be

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