Jaffar Rashid Dar vs Union Territory Of J&K &Ors

Sanjay Dhar, J

1) The DistrictMagistrate, Kulgam, in exercise of powers conferred under Section 8(a) of the Jammu and Kashmir Public Safety Act, has, vide order No.17/DMK/PSA/2021 dated 30.10.2021, ordered preventive detention of Shri Jaffar Rasheed Dar S/o Abdul Rasheed Dar R/o KujarYaripora Tehsil Yaripora District Kulgam (hereinafter referred to as the detenue), so as to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of the State.

2) By the instant petition, veracity and legality of the impugned detention order has been challenged by contending that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are vague, 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 has not been provided to the petitioner. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in the FIR, mention whereof has been made in the grounds of detention.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of 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 was read over and explained to him. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record.

4) I have heard learned counsel for parties and perused the 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 following grounds:

(I) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.15/2021 for offences under Section 13, 18-B, 39 ULA(P) Act registered with P/S Yaripora, but this fact has not been mentioned in the grounds of detention.

(II) That the whole of the material forming basis of the grounds of detention has not been furnished to the detenue.

6) It has been contended that the impugned detention order suffers from non-application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No. 15/2021vide order dated 28.10.2021 passed by learned Special Judge designated under NIA Act. A copy of the order issued by the said Court in this regard has been placed on record by the petitioner. The non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority.

This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court rendered in the case of Anant Sakharam Raut v. State of Maharashtra &Ors. AIR 1987 SC 137.

7) Next it is urged that whole of the material forming basis of the grounds of detention has not been supplied to the petitioner which deprived him from making an effective representation against his detention.

8) The detention record, as produced by learned counsel for the respondents, contains a copy of the Execution Report dated 02.11.2021, perusal whereof reveals that ten leaves comprising copy of PSA warrant (01 leaf), Notice (01 leaf), and grounds of detention (02 leaves), dossier (04 leaves) and copies of FIR (02 leaves), (in total 10 leaves), have been provided to the detenue and in token of receipt thereof, his signatures have been obtained on the said Execution Report. The receipt does not show anything to suggest that any other document/material has been furnished to the detenue. If we have a look at the grounds of detention, it bears reference to FIR No.15/2021 for offences under Section 13, 18-B, 39 ULA(P) Act registered with P/S Yaripora. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the FIR and other material on the basis of which petitioner’s involvement in the FIR is shown particularly because the petitioner is not nominated in the aforesaid FIR. All this material would run in dozens of pages and it is impossible that all this material would be covered in only two leaves.

9) 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. 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. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective 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. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

10) 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 the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable. 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), ThahiraHaris Etc. Etc. V. Government of Karnataka &Ors. (AIR 2009 SC 2184), Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, and Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241.

11) Viewed thus, the petition is allowed and the impugned order of detention 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.

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