Nisar Ahmad Qazi vs UT Of J&K & Another

Sanjay Dhar, J

1) Nisar Ahmad Qazi (the detenue), has filed this petition through his uncle, namely, Bashir Ahmad Sheikh, seeking a Writ of Habeas Corpus for quashing the detention order bearing No. o4/DMP/PSA/21 dated 06.01.2021, passed by District Magistrate, Pulwama (the detaining authority) with a view to prevent him from acting in any manner prejudicial to the security of the State. The order is, purportedly, passed by the detaining authority in exercise of powers conferred under Section 8 of the J&K Public Safety Act, 1978 (for short the Act of 1978),

2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of have detention not been furnished to the detenue.

3) On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein it is submitted that detention was necessitated because of involvement of the detenue in very serious offences against the State as mentioned in the FIR registered against him. 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 statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. The order has been issued validly and legally. The respondents have placed reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for the parties and perused the material available on record.

5) Learned counsel for the petitioner projected various grounds while seeking quashment of impugned detention order but his main thrust was on the ground that the detenue has been disabled from making an effective representation against the order of detention as the material, which formed base of the grounds of detention and the consequent order of detention, has not been furnished to him.

6) In the cases of preventive detention, a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The Supreme Court has in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, while interpreting Article 22(5) of the Constitution, observed that furnishing of grounds of detention means material sufficient to enable the petitioner to make an effective representation.

7) In Shalini Soni v. Union of India, (1980) 4 SC 544, the Supreme Court has observed that 'grounds' in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which led to such factual inferences. The Court further clarified that copies of the documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds.

8) Thus, the detaining authority is required to communicate to the detenue, (i) grounds of detention; (ii) all the documents referred to in the grounds of detention; (iii) all the documents and material which the detaining authority considers while framing his subjective satisfaction; (iv) detention order and also the police report or dossier if any.

9) The word 'grounds' used in clause (5) of Article 22 of the Constitution means not only the narrations or conclusions of facts, but also all materials on which those facts or conclusions which constitute grounds are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation. The detaining authority is obliged to mention in the grounds as to on which material it based his satisfaction. Failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. For this, support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241.

10) Detention record, as produced by learned counsel for the respondents, contains a copy of the Execution Report dated 09.01.2021. A perusal of the said report reveals that Executing Officer has handed over to the detenue detention warrant, grounds of detention and copy of FIR. The Execution Report does not even remotely suggest that the detenue has been furnished any other material.

11) If we have a look at the grounds of detention, it bears reference to FIR No.360/2016 as also the investigation proceedings emanating therefrom, which according to the grounds of detention establish involvement of the detenue in the said FIR. It was incumbent upon the respondents to provide the copy of the material collected by the investigating agency during the course of investigation of the aforesaid FIR on the basis of which involvement of the petitioner in the FIR had surfaced. This material could be in the shape of statements of witnesses recorded under Section 161 Cr. P. C or any other document collected by the investigating agency during the investigation of the case. No such material has been, admittedly, furnished by the respondents to the detenue.

12) The grounds of detention also bear reference to a dossier which most probably was forwarded by the police authorities to the Detaining Authority. The Execution Report does not suggest that any copy of the police dossier was provided to the petitioner.

13) In the absence of aforesaid vital material which has formed the basis of the grounds of detention against the petitioner, it was not possible for him to make an effective representation against his detention. Thus, his right under Article 22(5) of the Constitution of India and statutory right guaranteed to him under Section 13 of the J&K Public Safety Act has been infringed with impunity. This renders the impugned order of detention unsustainable in law. While holding so, I am fortified by the judgments rendered by the Supreme Court 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.

14) For the foregoing reasons, this petition is allowed. The impugned order of detention is quashed. Direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case.

15) Detention record be returned back to the learned counsel for the respondents.