Shabir Ahmad Ganie vs Union Territory Of J&K & Ors

Sanjay Dhar, J

1) By the instant petition, challenge has been thrown to the detention order No.23/DMA/PSA/DET/2021 dated 28.05.2021, issued by District Magistrate, Anantnag (for brevity “detaining authority”). In terms of the aforesaid order, Shabir Ahmad Ganie son of Abdul Rahim Ganie resident of Laktipora Arwani, Bijbehara District Anantnag (for short “detenue”) has been placed under preventive detention and lodged in District Jail, Udhampur.

2) The 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 vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case. 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, inasmuch as there is no mention in the grounds of detention regarding the fact that the detenue had already been admitted to bail in the FIR, reference whereof has been made in the grounds of detention. It has further been contended that whole of the material forming basis of the grounds of detention has not been furnished to the detenue which has disabled him from making an effective representation against his 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 were 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 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 following grounds:

(I) That the detenue was not furnished with whole of the material so to enable him to make an effective representation against his detention.

(II) That there has been non-application of mind on the part of the detaining authority as the detenue had already been admitted to bail in FIR No.97/2021 for offences under Section 7/25 Arms Act of P/S Bijbehara, but this fact has not been mentioned in the grounds of detention.

6) A perusal of the material on record reveals that the petitioner has received 19 leaves comprising grounds of detention and the dossier in English/Urdu, in token whereof, his signatures have been obtained on the document under the style ‘receipt of grounds of detention’, which forms part of detention record. Nothing has been brought on record to indicate that copy of FIR No.97/2020 and copies of the statements of witnesses recorded in the said FIR have 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. 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.

7) 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. 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.

8) Next 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 been admitted to bail in FIR No.97/2021 in terms of order dated 15.05.2021 passed by learned Judicial Magistrate, 1st Class, Bijbehara. 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 the 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 vs. State of Maharashtra &Ors., AIR 1987 SC 137.

9) 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.

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