Shafqat Abrar vs Union Territory Of J&K And Others
2021 Latest Caselaw 108 j&K/2

                HIGH COURT OF JAMMU AND KASHMIR
                           AT SRINAGAR
                                   (Through Video Conference)

                                                             Reserved on:    17.12.2020
                                                             Pronounced on : 12 .02.2021


                                                              WP(Crl.) No. 523/2019


Shafqat Abrar                                                 ...Petitioner/Applicant(s)

                    Through :-      Mr. Syed Ahmad Andrabi, Advocate

                   v/s
                    <




Union Territory of J&K and others
't
                                                                      .....Respondent (s)

                    Through :- Ms. Asifa Padroo, AAG
Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                         (through Video Conference from residence in Jammu)

                                         JUDGMENT

1. Through the medium of this petition filed through his maternal uncle,

the petitioner has questioned the order of detention bearing No.

59/DMK/PSA/2019 dated 20.08.2019 issued by respondent No. 2 by virtue of

which the petitioner has been ordered to be detained under the J&K Public Safety

act, 1978 (for short the Act).

2. It is stated in the petition that the petitioner was arrested by the police

on 27.01.2019 in view of his alleged involvement in FIR No. 7/2019 under

sections 13(2), 17, 18, 18 (b), 19, 20, 38 and 39 ULA (P) Act registered with

Police Station D.H. Pora and the petitioner was enlarged on bail on 16.08.2019 by

the Additional District and Session Judge (TADA, POTA), Srinagar. However, the

petitioner was not released and was detained under preventive custody in terms of

order No. 59/DMK/PSA/19 (supra). The petitioner has questioned the order of

detention primarily on the grounds inter alia:

(i) that the procedural safeguards, envisaged under the Constitution of India and

in terms of J&K Public Safety Act, have not been complied with by the

respondent No. 2 while passing the order of detention.

(ii) That the grounds of detention are vague, indefinite, obscure and no prudent

man can make representation against such allegations.

(iii) That the grounds of detention have not been formulated by the competent

authority but by the respondent No. 3 who was incompetent to do so.

(iv) That the respondent No. 2 has not furnished the relevant material relied upon

by the detaining authority while passing the order of detention as mentioned

in the grounds of the detention to the petitioner, as such, the same deprived

the petitioner of his right to make effective representation against the order

of detention.

(v) That the detenue was already in detention in above FIR and the detaining

authority was not aware of the fact that the detenue is actually in custody of

police at the time of passing of detention order and also there is no mention

of the fact that the detenue had applied for bail for his release nor there is

any satisfaction that there is likelihood of his being released on bail. There is

no satisfaction by the detaining authority that there is necessity to detain the

petitioner particularly when the petitioner was already in custody.

(vi) That the grounds of detention are merely the reproduction of the contents of

dossier and it shows the non-application of mind by the respondent No. 2

while passing the order of detention.

3. The respondents have filed the counter affidavit in which they have

stated that all statutory and constitutional safeguards have been complied with by

the detaining authority, indisputably keeping in mind the very object of law of

preventive detention being not punitive, but only preventive. It is further stated that

grounds of detention, order of detention as well as the entire material relied upon

by the detaining authority came to be furnished to the detenue(petitioner) within

the statutory period provided under section 13 of the Act. In compliance to the

order of detention, the warrant was executed by the executing officer and detenue

was handed over to S. P. Central Jail Srinagar for lodgement. The contents of

detention order/warrant and the grounds of detention were read over and explained

to the detenue in the language which he fully understood and in lieu thereof he

signed the execution report/order. The Advisory Board in terms of section 16 of

the Act, after considering the material placed before it, held that there is sufficient

cause for detention of the petitioner in the instant case. After the opinion of the

Advisory Board, the Government has confirmed the order of detention issued

against the detenue(petitioner). It is further submitted that the petitioner has studied

up to 10th class and left the studies due to lack of interest. In the meanwhile, the

detenue developed close association with one over ground worker namely Afridi

Bhat upon whose motivation, the petitioner joined Hizbul Mujahidin Outfit as an

active over ground worker. The detenue has been found responsible for providing

shelter, food and every logistic support to militant outfits in order to carry out

unlawful activities. The detenue has been named in a case FIR No. 7/2019 under

sections 13(2), 17, 18, 18 (b), 19, 20, 38 and 39 ULA (P) Act registered with

Police Station D.H. Pora for hatching criminal conspiracy pertaining to the terrorist

attacks and other unlawful activities. Keeping in view the activities of the detenue

prejudicial to the security, sovereignty and integrity of the State, the respondent

No. 2 has ordered his preventive detention under the Act.

4. Heard considered and produced the detention record.

5. Before appreciating the rival contentions of the parties, it would be

appropriate to note that the procedural requirements are the only safeguards

available to the detenue since the Court cannot go behind the subjective

satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B.

K. Jha reported in (1987) 2 SCC 22, it has been held by the Apex Court that the

procedural requirements are the only safeguards available to a detenue since the

court is not expected to go behind the subjective satisfaction of the detaining

authority. The procedural requirements are, therefore, to be strictly complied with

if any value is to be attached to the liberty of the subject and the constitutional

rights guaranteed to him in that regard.

6. From the perusal of the execution report that form the part of

detention record, it is revealed that the detention order dated 20.08.2019 was

executed on 21.08.2019 at Central Jail, Srinagar and Mr. Nazir Ahmad, ASI

executed the same. The perusal of the execution report reveals that the contents of

the detention warrant along with grounds of detention were read over and

explained to him in Urdu/Kashmiri languages. Copies of warrant, grounds of

detention and dossier comprising of 8 leaves in total were handed over to the

petitioner. Perusal of the grounds of detention reveal that while preparing the

grounds of detention, detaining authority i.e. respondent No. 2 has relied upon one

FIR but the same has not been supplied to the petitioner and this disabled the

petitioner to make an effective representation against the order of detention to the

detaining authority and also to the Government. Thus, non furnishing of all the

documents those have been relied upon by the detaining authority while issuing the

detention order, to the petitioner has resulted in denial to the petitioner of his right

guaranteed under Article 22(5) of Constitution of India as well as section 13 of the

Act to make effective representation to the detaining authority and also to the

Government against his preventive detention. It is only after the detenue is

supplied all the material that has been relied upon by the detaining authority, that

he can make an effective representation to the Detaining Authority and also to the

Government. Failure on the part of the respondent No. 2 to supply material relied

upon by him, while passing the detention order renders it illegal. Reliance is placed

upon the decision of Apex Court in Thahira Haris v. Govt. of Karnataka,

reported in (2009) 11 SCC 438 and the relevant para is reproduced s under:

"30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of

communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

7. Besides, the detention order was passed while the petitioner was in

custody in FIR mentioned above but despite this, the respondent No. 2 has nowhere

derived his satisfaction in the grounds of detention that it is necessary to detain the

petitioner under the Act, particularly in view of the fact that in the dossier it was

specifically mentioned that there existed every likelihood that the petitioner may

obtain bail from the court of law. It clearly reflects the non-application of mind on

the part of the respondent No. 2 while passing the order of detention against the

petitioner.

8. On these grounds only, the impugned detention order is not

sustainable. So there is no need to consider the other grounds of challenge.

9. In view of the above, this petition is allowed. Detention order No.

59/DMK/PSA/2019 dated 20.08.2019 is quashed. Petitioner (detenue) be set free

from the preventive custody provided he is not required in any other case.

(RAJNESH OSWAL) JUDGE JAMMU 12.02.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No