Umar Yousaf Bhat vs Government Of J&K And Others

Sanjeev Kumar, J

1) Impugned in this petition is order of detention bearing 42/DMP/PSA/ 20 dated 24.11.2020 passed by the District Magistrate, Pulwama (“the

Detaining Authorityâ€) in exercise of powers conferred under Section 8 of the Public Safety Act (“the Actâ€), whereby the petitioner (“the

Detenueâ€) has been detained in preventive custody with a view to preventing him from acting in any manner prejudicial to the maintenance of public

order. The detention has been ordered by the Detaining Authority on the basis of the activities of the detenue delineated in the grounds of detention,

served upon the detenue immediately on the execution of the detention order.

2) From a perusal of the grounds of detention, it transpires that pursuant to the dossier of activities of the detenue, placed by the police before the

Detaining Authority, the detune was placed under preventive detention in terms of the impugned order of detention. As per the grounds of detention

claimed to have been served upon the detenue, the detenue had joined the rank of Jamat-e-Islami, a organization declared unlawful organization by the

Ministry of Home Affairs, Govt. of India under Sub-Sections (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act and subsequently his

involvement was also found in an attack on the security forces by a violent mob during encounter between terrorists and the security forces on

06.06.2020 at village Beigpora. The detenue was booked in FIR No.59/2020 and was taken in police custody. He was, however, granted bail by the

competent court of jurisdiction and, therefore, released from custody. Subsequently, the detenue was arrested twice by the police in terms of Section

107 read with Section 151 Cr.P.C. for maintaining peace and tranquillity in the area.

3) The detenue has assailed the impugned order of detention on several grounds. However, Mr. Sofi, learned counsel for the detenue has restricted his

challenge to the impugned order on the ground that the requisite material, relied upon by the Detaining Authority to derive his satisfaction with regard

to the necessity of passing the detention order, was not served upon the detune and that deprived the detenue of his constitutional right to make

effective representation against his detention to the competent authority.

4) The respondents have opposed the writ petition by filing reply affidavit of the Detaining Authority. From a perusal of the detention record produced

by the learned counsel for the respondents, it is seen that at the time of execution of the detention order, the deteue was furnished five leaves,

detention order and grounds of detention, but copy of FIR and record of the proceedings taken against the detenue under Section 107/151 Cr.P.C. was

not served upon the detenue and, therefore, the detenue is right in saying that he was deprived of his constitutional right to make effective

representation against his detention. The aforesaid ground of challenge goes to the root of validity of the detention and, therefore, the detention order

cannot sustain on any other ground.

5) Reliance of the learned counsel for the respondents on Section 10-A of the Act is misplaced.

6) For the foregoing reasons, I find merit in this petition and the same is, accordingly, allowed. The impugned order of detention is quashed. The

respondents are directed to release the detenue/petitioner from preventive custody forthwith, if not required in any other case.

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