Owais Ahmad Bhat vs Union Territory Of J&K &Anr
2021 Latest Caselaw 1720 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                                      Reserved on: 20.12.2021
                                                      Pronounced on 31.12.2021


                            WP(Crl.) No.108/2020

OWAIS AHMAD BHAT                                          ...PETITIONER(S)

                 Through: - Mr. R. A. Jan, Sr. Adv. with
                             Mr. Aswad Attar, Advocate.

Vs.

UNION TERRITORY OF J&K &anr. ...RESPONDENT(S)

                 Through: - Mr. Mir Suhail, AAG


CORAM:           HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                    JUDGMENT

1) Challenge in this petition is thrown to the order

No.12/DMP/PSA/20 dated 07.07.2020, issued by District Magistrate,

Pulwama (for brevity "Detaining Authority") whereby Shri Owais

Ahmad Bhat son of Habibullah Bhat resident of Arihal Tehsil &

District Pulwama (for short "detenu") has been placed under

preventive detention and directed to be lodged in Central Jail,

Srinagar

2) 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 mere

reproduction of the dossier. It has been further contended that the

Constitutional and Statutory procedural safeguards have not been

complied with in the instant case. It has been also urged that the

allegations made against the detenue in the grounds of detention are

vague and that the translated version of the documents/grounds of

detention has not been provided to the detenue who is a semi-literate

person. It has also been contended that the petitioner has not been

informed as to before which authority he had to make a

representation.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and stated that they have followed the

provisions of J&K Public Safety Act. It is contended that the detenue

has been detained only after following due procedure; that the grounds

of detention were read over to the detenue; that there has been proper

application of mind for detaining the detenue 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) Learned counsel for the petitioner, while seeking quashment of

the impugned order, projected various grounds but the main ground

that has prevailed during discussion is that the detenue has been

disabled from making an effective representation against his detention

as the material forming basis of the grounds of detention has not been

supplied to him.

6) On perusal of the detention record produced by learned counsel

for the respondents, the ground regarding non-supply of relevant

material appears to have substance as the said record suggests that the

whole of the relevant material has not been supplied to the detenue.

The execution report in the record indicates that the detenue has been

supplied 04 leaves comprising copy of warrant/notice/ and grounds of

detention. It appears that copy of the dossier and copy of the FIR

including documents relating to the FIR, reference whereof has been

made in the grounds of detention, have not been supplied to the

detenue. This goes to support the contention of the petitioner that he

has not been supplied whole of the relevant material. Obviously, the

petitioner has been hampered by non-supply of the relevant material

in making an effective representation against his detention before the

concerned authority/Advisory Board.

7) Non-furnishing of relevant material forming basis of the

grounds of detention deprives a detenue of his Constitutional right to

make a representation against the order of detention. The denial of this

Constitutional right renders the order of detention unsustainable in

law. 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.

8) The cumulative effect of the aforesaid discussion leads to

the only conclusion that in the instant case, the respondents have

not adhered to the legal and Constitutional safeguards while

passing the impugned detention order against the petitioner. The

impugned order of detention is, therefore, unsustainable.

Accordingly, the same 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.

9) The record, as produced, be returned to the learned counsel

for the respondents.

(Sanjay Dhar) Judge Srinagar 31.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:         Yes/No
                                              Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.12.31 14:46
I attest to the accuracy and
integrity of this document