Shabir Ahmad Teli vs Union Territory Of Jammu And Kashmir And Others

Sanjay Dhar, J

Challenge in this writ petition is thrown to Order No. 40/DMB/PSA/2022, dated 09.04.2022 passed by District Magistrate, Baramulla (hereinafter to be referred as the Detaining Authority), whereby Shabir Ahmad Teli S/o. Late Gh. Mohd Teli R/o. Banglow Bagh District Baramulla (hereinafter to be referred as the detenue) has been placed under preventive detention so as to prevent him from acting in any manner prejudicial to the security of the State.

The petitioner has challenged the impugned order of detention on the grounds that the same has been passed by respondent No. 2 without application of mind as the grounds of detention are replica of the Police Dossier sent by the Police to the Detaining Authority. It has been further contended that there were no compelling reasons for the Detaining Authority to pass the impugned order of detention as the petitioner was already in custody in connection with FIR No. 218/2020 for offences under Sections 7/25 Arms Act and Sections 8, 19, 20 and 39 of the UAP Act. It has also been contended that the grounds of detention contain vague allegations against the petitioner, on the basis of which, no effective representation could be made. It has been further contended that the petitioner is a semi-literate person and as such, he was unable to understand the contents of the grounds of detention and the supporting material, which are couched in technical language. It has been submitted that the respondents have not provided the translated version of the material, on the basis of which, grounds of detention have been formulated, as a result of which, the petitioner could not make representation against the impugned order of detention.

The respondents have contested the writ petition by filing a counter affidavit thereto. In their counter affidavit, the respondents have disputed the averments made in the petition and they have stated that they have adhered to the constitutional and statutory safeguards, while passing the impugned order of detention. It has been contended that the grounds of detention were read over to the detenue in the language which he understands and it has also been submitted that the impugned order of detention has been passed after proper application of mind. The respondents have submitted that the petitioner has been involved in secessionist activities and was working as Over Ground Worker of the militant organizations like Lashar-e-Taiba(LeT) and The Resistance Front(TRF). In order to lend support to their contentions, the respondents have produced the detention record.

I have heard learned counsel for the parties and perused the record of the case including the record of detention produced by learned counsel for the respondents.

The first ground that has been urged by learned counsel for the petitioner is that there were no compelling reasons for the Detaining Authority to pass the impugned order of detention because the petitioner was already in custody undergoing trial in case FIR No. 218/2020 of Police Station, Baramulla.

There is no dispute to the fact that the petitioner was in custody undergoing trial in the aforesaid case. In the detention record produced by the respondents, does not even suggest that the petitioner had been admitted to bail. In fact the petitioner has categorically averred in the petition that he had not even applied for grant of bail. The petitioner was facing trial for offences which fall under Chapter IV of the UAP Act. Therefore provisions containing in Section 43 D of the UAP Act were attracted to the case of the petitioner. Thus, it was very difficult for him to procure bail in these offences. Even otherwise, it is not even the case of the respondents that the petitioner had ever applied for bail. The grounds of detention also do not refer to any such apprehension on the part of the Detaining Authority.

In view of the aforesaid circumstances, learned counsel for the petitioner is right in submitting that there were no compelling reasons for the respondents to resort to preventive detention. The Supreme Court in A. K. Gopalan v State of Madras, 1950 SCR 88 and in Rekha v. State of Tamil Nadu, AIR 2011 SCW 2262 has held that the preventive detention by its very nature is repugnant to democratic ideals and an anathema to the rule of law. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus, if preventive detention is not ordered in strict conformity with law authorising detention, the detenue is entitled to be released.

As already stated, the petitioner was in custody at the time when the impugned order of detention was passed. There was no likelihood of his getting bail having regard to the nature of offences for which he was facing trial. In fact he had not even approached the trial court for grant of bail and the Detaining Authority has not even expressed its apprehension that the petitioner is likely to get bail, while recording the grounds of detention. Therefore, there were no compelling circumstances available to the Detaining Authority for passing the impugned order of detention. The same, therefore, is not sustainable in law.

Another ground urged by learned counsel for the petitioner is that the petitioner has not been provided the translated version of the material and the grounds of detention, as a result of which, he could not understand the same. This, according to the petitioner, has prevented him from making an effective representation against the impugned order of detention.

If we have a look at the grounds of detention, it is recorded that the petitioner has studied upto 7th Class, which means that he is a semi-literate person. The record of detention shows that the petitioner has been provided the material including the grounds of detention, which runs into six leaves. It is an admitted case of the parties that the petitioner is facing trial in FIR No. 218/2020 of Police Station, Baramulla. The respondents were obliged to supply to the petitioner not only the copy of the aforesaid FIR but also the statements of the witnesses recorded during investigation of the case that were attached to the challan. These would definitely run into dozens of pages, but the petitioner has been furnished only six pages, which includes the grounds of detention and warrant of detention. Thus, it appears that the petitioner has not been provided the whole of the material relating to the FIR, mention whereof is made in the grounds of detention nor has he been provided the copy of the Police dossier. This has prevented the petitioner from making an effective representation against the impugned order of detention, thereby rendering the impugned order of detention unsustainable in law.

It is recorded in the receipt of grounds of detention that the grounds of detention have been explained to the petitioner in Urdu language, but the said assertion of the Executing Official is not supported by his affidavit. No such affidavit could be found in the record of detention. To eradicate all the doubts, it was incumbent upon the part of the person who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. This requirement has not been followed in the instant case, at least the record suggests so. On this ground also the impugned order of detention deserves to be set aside.

For what has been discussed hereinbefore, the petition is allowed and the impugned order of detention bearing No. 40/DMB/PSA/2022, dated 09.04.2022 passed by District Magistrate, Baramulla, is quashed. The petitioner is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

The record, as produced, be returned to the learned counsel for the respondents.