Javaid Ahmad Sofi vs State Of J&K & Anr
2021 Latest Caselaw 79 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                         Reserved on: 27.01.2021
                                                                       Pronounced on: 10.02.2021

                                                                           WP(Crl.) No.550/2019

                      Javaid Ahmad Sofi                                          ...Petitioner(s)

                                     Through: - Mr. Aijaz Ahmad Bhat, Advocate
                      Vs.

                      State of J&K & anr.                                      ...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.DMB/PSA/74/2019 dated 14.09.2019, issued by

District Magistrate, Budgam (for brevity "Detaining Authority"), has

been assailed. In terms of the impugned order, Shri Javaid Ahmad Sofi

@ Judge son of Mohammad Ramzan Sofi resident of Parabagh

Rawalpora, Srinagar, has been placed under preventive detention and

lodged in Central Jail, Srinagar.

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 and that the translated version of the MOHAMMAD ALTAF BHAT 2021.02.11 10:57 I attest to the accuracy and integrity of this document

documents/grounds of detention has not been provided to the detenue

who is a semi-literate person. Petitioner has gone to contend that he 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 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 MOHAMMAD ALTAF BHAT 2021.02.11 10:57 I attest to the accuracy and integrity of this document

by the petitioner on 18.09.2019. 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 warrant (01 leaf),

notice (01 leaf), grounds of detention (04 leaf), dossier (04 leaves) and

copy of FIRs (04 leaves), in total 14 leaves, have been supplied to him.

7) In the grounds of detention reference has been made to case FIR

Nos.229/2017, 69/2018, 60/2018 and 362/2018. It is also mentioned in

the grounds of detention that there are statements of witnesses recorded

under Section 161 Cr. P. C during the investigation of these FIRs which

show the involvement of detenue in the commission of offences which

are subject matter of investigation in those FIRs. It is clear from the

execution report, which forms part of the detention record, that copies of

statements of witnesses recorded under Section 161 Cr. P. C have not at

all been supplied to the detenue and obviously he 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. 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), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors

(AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar

MOHAMMAD ALTAF BHAT 2021.02.11 10:57 I attest to the accuracy and integrity of this document

Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs.

State of Gujarat and others", (1982) 3 SCC 440.

8) In view of aforesaid discussion, it is clear that the respondents

have failed to observe the mandatory constitutional and statutory

safeguards in the case of petitioner and, as such, the impugned order

of detention cannot be sustained in law.

9) The other ground urged by the petitioner is that there has been

non-application of mind on the part of the Detaining Authority. In the

instant case the grounds of detention are more or less a Xerox copy of

the dossier. This contention finds support from the material on record.

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. In my aforesaid view, I am fortified by

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

State of J&K (AIR 1985 SC 764).

10) 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

MOHAMMAD ALTAF BHAT contain almost similar wording which shows that there has been non- 2021.02.11 10:57 I attest to the accuracy and integrity of this document

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

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

ground also.

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

of detention bearing No. DMB/PSA/74/2019 dated 14.09.2019, issued

by District Magistrate, Budgam, is quashed. Further custody of the

detenue shall be governed in accordance with the orders of the court of

competent jurisdiction in connection with criminal case(s) registered

against him.

(Sanjay Dhar) Judge

Srinagar 10.02.2021 "Bhat Altaf, PS"

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




MOHAMMAD ALTAF BHAT
2021.02.11 10:57
I attest to the accuracy and
integrity of this document