Sohaib Ahmad Malik vs Ut Of J&K & Ors

Sanjay Dhar, J

1) Impugned in this petition is the order of detention bearing No.05/DMB/PSA of 2021 dated 29.07.2021, issued by District Magistrate, Bandipora (“the Detaining Authority”). In terms of the impugned order, Shri Sohaib Ahmad Malik son of Fojdar Malik resident Gundpora Tehsil and District Bandipora, has been placed under preventive detention and lodged in Central Jail, Kotebhalwal, Jammu.

2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague. Petitioner has gone to contend that whole of material forming the basis of the detention order has not been provided to him

3) The writ petition is opposed by the respondents who have filed reply affidavit on behalf of the detaining authority. The factual submissions made by the petitioner have not been refuted in the reply affidavit by the respondents. The respondents have relied upon the judgment of the Supreme Court in the case of Hardhan Saha v. State of W.B (1975) 3 SCC 198, and submitted that the detention order is based on the subjective satisfaction of the detaining authority and the same cannot be gone into by this Court in exercise of its extraordinary writ jurisdiction. It is contended that the detenue has been detained only after following due procedure; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records 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 detention record.

5) The main ground urged by the learned counsel for the petitioner is that the constitutional and statutory procedural safeguards have not been complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him.

6) A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 31.07.2021. Report of Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of petitioner and according to it, copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related documents (Nil), in total 05 leaves, have been supplied to him.

7) It is clear from the execution report, which forms part of the detention record, that copy of the dossier has not at all been supplied to the detenue. Apart from this, if we have a look at the grounds of detention, it bears reference to FIR No.26/2021 of P/S Aaragam. 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 said FIR as well as the other material on the basis of which petitioner’s involvement in the FIR is shown. 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. 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.

8) Furnishing of material including the FIR and statements of witnesses is a necessary requirement for enabling the detenue to make an effective representation against the order of detention. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440.

9) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The detenue is directed to be released from the preventive custody forthwith, unless, of course he is not required in connection with any other case.

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