Nisar Ahmad Khanday vs Ut Of J&K & Ors
2021 Latest Caselaw 100 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                          Reserved on: 29.01.2021
                                                                        Pronounced on:11.02.2020


                                                                           WP(Crl.) No.162/2020

                      Nisar Ahmad Khanday                                        ...Petitioner(s)

                                     Through: - Mr. Vaseem Aslam, Advocate
                      Vs.

                      UT of J&K & ors.                          ...Respondent(s)

                                     Through: - Mr. Mir Suhail, AAG.


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


                                                         JUDGMENT

1) By the medium of this petition, veracity and validity of the order

of detention bearing No.28/DMP/PSA/20 dated 25.09.2020, issued by

District Magistrate, Pulwama ("the Detaining Authority"), has been

assailed. In terms of the impugned order, Shri Nisar Ahmad Khanday

son of Late Gh. Hassan Khanday resident of Chersoo Tehsil Awantipora

District Pulwama, 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 MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document

grounds of detention are vague. Petitioner has gone to contend that he

has not been informed as to before which authority he had to make a

representation.

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 submit 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

MOHAMMAD ALTAF BHAT grounds of detention has not been furnished to him. 2021.02.12 12:21 I attest to the accuracy and integrity of this document

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 08.10.2019. Report of Executing Officer in this

regard forms part of the detention record, a perusal thereof reveals that it

bears the signature of petitioner and according to it, copy of detention

warrant (01 leaf), grounds of detention (02 leaves) and notice of

detention (01 leaf), in total 04 leaves, have been supplied to him.

7) It is clear from the execution report, which forms part of the

detention record, that copies of detention order and the dossier have not

at all been supplied to the detenue. The grounds of detention bears

reference to proceedings under Section 107 of Cr. P. C against the

detenue but the copies of relevant documents pertaining to these

proceedings have also not been provided to the detenue, as is clear from

the report of execution.

8) 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.

9) Furnishing of material including statement 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), MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document

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.

10) Another ground that has been argued during the course of

arguments is that there has been non-application of mind on the part of

the Detaining Authority as the grounds of detention are more or less a

Xerox copy of the dossier.

11) From a perusal of the record, the ground projected appears to have

substance. The grounds of detention, in this case are, in fact, a replica of

dossier with interplay of some words here and there. This exhibits non-

application of mind and in the process deriving of subjective satisfaction

has become a causality. While formulating the grounds of detention, the

Detaining Authority has to apply its own mind. It cannot simply reiterate

whatever is written in the dossier. Here it will be apt to notice the

observations of the Supreme Court in the case of "Jai Singh and ors vs.

State of J&K" (AIR 1985 SC 764), which are reproduced hereunder:

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father‟s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ......."

Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document

all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into „you‟ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."

12) From a perusal of the aforesaid observations of the Supreme

Court, it is clear that the ground of detention and the dossier, if in similar

language, go on to show that there has been non-application of mind on

the part of the Detaining Authority. As already noted, in the instant case,

it is clear from the record that the dossier and the grounds of detention

contain almost similar wording which shows that there has been non-

application of mind on the part of the Detaining Authority. The

impugned order of detention is, therefore, unsustainable in law on this

ground alone.

13) For the afore-stated reasons, the petition is allowed and the order

of detention bearing No.28/DMP/PSA/20 dated 25.09.2020, issued by

District Magistrate, Pulwama, 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.

(Sanjay Dhar) Judge

Srinagar 11 .02.2020 "Bhat Altaf, PS"

                                         Whether the order is speaking:           Yes/No
                                         Whether the order is reportable:         Yes/No
MOHAMMAD ALTAF BHAT
2021.02.12 12:21
I attest to the accuracy and
integrity of this document