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Judgment
M.A.Chowdhary, J
1) The petitioner has questioned in this writ petition the legality and validity of the Order No.141/DMS/PSA/2022 dated 28.06.2022, issued by respondent No.2-District Magistrate, Shopian, under Section (8) of the J&K Public Safety Act (for short “Detaining Authority”) whereby Shahid Nazir Malik S/O Nazir Ahmad Malik R/O Pinjura Tehsil & District Shopian (for short “detenue”) has been placed under preventive detention and directed to be lodged in District Jail Baramulla.
2) The petitioner has contended that the Detaining Authority has passed the impugned detention order, mechanically, without application of mind, inasmuch as 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 detention, has not been provided to the detenue. It has also been averred that the grounds of detention are vague and the same are mere assertions of the detaining authority on which no prudent man can make an effective representation against the 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 UT/Country. It has been averred in the reply that the detaining authority has followed the provisions of J&K Public Safety Act and the detenue has been detained only after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue, which were read over and explained to him; that the grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit.
4) I have heard learned counsel for parties and I have also gone through the detention record.
5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main thrust of challenge to the impugned order of detention is that the grounds of detention are vague and cryptic, inasmuch as the material particulars of that the detenue is a hard core OGW and facilitator of terrorist activities of LeT/HM outfits in District Shopian, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention.
6) On perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. There is no mention of the particulars of the place, the identity of the persons alleged to have received support of the detenue and the particulars of the period in the grounds of detention. These grounds, being vague and lacking in material particulars, as such, the detenue could not make an effective representation against his detention, on the basis of these vague allegations. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5)of the Constitution. Thus, the detention order is illegal and unsustainable. In my aforesaid view, I am fortified by the judgments of the Supreme Court in the case of Jahangir khan Fazal Khan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265.
7) The requirement of law is that whole of the record, on which the detention order is based, has to be made available to the detenue in the language that he understands. As per the execution report, he has been furnished relevant documents i.e copy of detention warrant and grounds of detention only against proper receipt. Dossier which is the summary of allegations/accusations against the detenue to base his detention has not been supplied to him, incapacitating him to make an effective and meaningful representation. The detenue, thus cannot be said to be provided with whole of the record which based his detention, so as to make an effective representation. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5)of the Constitution. Thus, the detention order is illegal and unsustainable.
8) The detention order passed on 28.06.2022 by the detaining authority was executed through ASI Ab. Hamid No. 132/CID DPL Shopian on 04.07.2022 in District Jail Baramulla . As per execution report the material/record was explained to the detenue in Urdu/Kashmiri, the languages which he understood. The detenue, however, is not stated to have been furnished the material on which detention order was based in those languages.
9) Hon’ble the Supreme Court in a case titled Chaju Ram Vs The State of Jammu & Kashmir, reported as AIR 1971 SC 263, held in Para-9 of the judgment as under:-
“.........The detenu is an illiterate person and it is absolutely necessary that when we are dealing with a detenu who cannot read or understand English language or any language at all that the grounds of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him the document written in English and to obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the law which gives a very valuable-right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language. We are therefore compelled to hold in this case that the requirement of explaining the grounds to the-detenu in his own language was not complied with.”
10) The Hon’ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC 3051), has also held as under:
“The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.”
11) The non-application of mind by the detaining authority is also writ large in view of the fact that the detention order has been framed in a manner that it has not applied its mind but has acted upon the dossier, prepared by the Sr. Superintendent of Police Shopian only. This is evident from the opening sentence of the order which is reproduced as under:-
“Whereas, on the basis of dossier placed before me by the Sr. Superintendent of Police Shopian vide his letter No. CS/D-I/2022/4654 dated 27.06.2022 I am satisfied that with a view to prevent Shahid Nazir Malik….”
12) For the foregoing reasons, the petition is allowed and the impugned order of detention is set aside. The respondents are directed to release the detenue from the preventive custody forthwith provided he is not required in connection with any other case.
13) The record, as produced, be returned to the learned counsel for the respondents.