Aijaz Ahmed Sheikh vs Union Territory Of J&K And Another
2021 Latest Caselaw 11 j&K/2

                                                                    Sr. No. J3



             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                                             Pronounced on: 28.01.2021

                                                WP(Crl) No. 78/2020


Aijaz Ahmed Sheikh                                              ...Petitioner..

                               Through :- Mr. Wajid M. Haseeb, Advocate.


                      v/s


Union Territory of J&K and another                          ...Respondent(s)..

                              Through :- Mr. Mir Suhail, AAG

Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                                (Through Virtual Mode from Jammu)
::: :
                                  JUDGMENT

1. Petitioner-Aijaz Ahmad Sheikh through his brother Tawseef Ahmad

Sheikh has challenged his detention order No. 09/DMP/PSA/20 dated

20.06.2020, passed by respondent No.2, on the ground that there was

no justification to pass the detention order against the said Aijaz

Ahmad Sheikh; that the two F.I.Rs mentioned in the grounds of

detention do not reflect the reality against the petitioner; that the

grounds of detention are vague; that the detenue was already in

custody in F.I.R No. 132/2020 and had neither applied for bail nor was

bail otherwise due to him and that the detaining authority has not

mentioned the fact of his custody in the aforesaid F.I.R thus vitiating

the detention order; that the detaining authority has not applied its

mind of his own but relied upon the police dossier only; that the

relevant material has not been furnished to the petitioner thereby

effecting his right to have effective representation against his detention

order; that the order of detention was passed in English and the

translated version of the order was not made available in

Kashmiri/Urdu language to the detenue who was having knowledge of

the above languages only.

2. The reply affidavit has been filed on behalf of the respondent No.2.

The respondent has justified the order of detention by submitting that

the order has been passed as per the provisions of the Public Safety Act

after fulfilling all the statutory requirements. The respondent has

denied the grounds on which the detention order has been challenged

as it is submitted that the contents of warrants were read over and

explained to the detenue who also put his signatures on the same and

was also informed of his right to make representation against his

detention order. The order has been passed with complete independent

application of mind by the authority. Indeed, the prayer is for dismissal

of the petition.

3. Heard learned counsel for the parties and perused the digital record

provided to the Court.

4. Learned counsel for the petitioner has reiterated the submissions made

in the petition.

5. Learned counsel for the respondents has referred to the record in order

to impress upon the court that the order of detention has been passed as

per the provisions of the Public Safety Act.

6. The words „preventive detention‟ speak for themselves the meaning.

The preventive detention and prosecution have different purposes and

the nature of proceedings is also entirely different. The difference

between the preventive detention and prosecution is aptly described in

the following observations of the Apex Court in Haradhan Saha‟s case

reported in (1975) 3 SCC 198:

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

7. The order of detention is approved by Government Order No.

Home/PB-V/1304 of 2020 dated 24.06.2020. The Advisory Board

constituted under the Public Safety Act has approved the detention

order vide dated 20.07.2020. Consequently, the Government vide order

No. Home/PB-V/1505 of 2020 dated 06.08.2020 confirmed the order

of detention of 20.06.2020 for a period of three months in the first

instance. This period has been further extended by the Government

also vide order No. Home/PB-V/1609 of 2020 dated 02.09.2020 for a

further period of three months. The detenue has been lodged in Central

Jail, Jammu, Kot Bhalwal. It is submitted on behalf of the petitioner

that the order of detention has further been extended against the

petitioner.

8. Perusal of the record reveals that the order of detention of 20.06.2020

has been executed on 24.06.2020 in Central Jail, Srinagar. The

execution of detention order reveals the signature of the detenue-Aijaz

Ahmad. The receipt of detention papers also records the signature of

detenue. The Court finds no reason not to believe the contents of the

aforesaid documents.

9. The point which is required to be considered is if the detention order

and the grounds of detention comply with the provisions of the Public

Safety Act. The record reveals that the dossier with regard to the

petitioner was prepared by Superintendent of Police, District Pulwama

and the same was made available to respondent No.2 with the finding

that the acts of the petitioner are highly prejudicial to the maintenance

of public order and peace and the detention of the petitioner under the

provisions of the Public Safety Act, 1978 has become imperative. The

respondent No.2 while passing the order of detention has separately

recorded the grounds of detention and thus form part of the detention

order itself. The respondent No.2 has taken into consideration the

dossier submitted by the Superintendent of Police, District Pulwama

while passing the detention order and agreed with what has been stated

in the dossier. As per the grounds of detention the petitioner is

indulging in anti-national and anti-social activities which are highly

prejudicial to the maintenance of public order. F.I.R No. 374/2016,

Police Station, Pulwama has been registered against the petitioner for

various offences. The F.I.Rs No. 482/2016, 94/2017, 74/2019 and

132/2020 of Police Station, Pulwama also stand registered against the

petitioner. All the F.I.Rs stand registered against the detenue on more

or less the same grounds. The F.I.Rs are the basic reason for passing of

the detention order against the petitioner. Perusal of the file further

reveals that the petitioner has been provided five leaves while

executing the detention order and it includes contents of the PSA

warrant, notice consisting of one leaf and grounds of detention

consisting of three leaves. It is apparent from the record that the

detaining authority has, as stated above, relied upon mainly on the

dossier provided by the Superintendent of Police, District Pulwama.

The dossier contains copies of F.I.R and the statements of the

witnesses recorded in F.I.R No. 132/2020. Undoubtedly, the petitioner

has not been provided any material supporting the detention order.

What prevented the detaining authority or the authority executing the

warrant from providing the material to the detenue is not forthcoming

from the record as well as the reply submitted to the petition. Merely

providing the grounds of detention without providing the other

material which has formed the basis for the detention order, without

doubt, is in violation of the statutory requirement provided under the

Public Safety Act, more so when the respondents have not been able to

explain the omission in this regard. The non-supply of the all important

material which may be in the form of F.I.R or the statements of the

witnesses or any other document not only keeps the petitioner unaware

of the relevant material on the basis of which the detention order was

passed, it also effects the statutory right of the petitioner to make

effective and purposeful representation before the Advisory Board

constituted under the Public Safety Act or the government. The right of

representation cannot be taken away by the detaining authority which

is statutory right of the petitioner. The courts have deprecated the

execution of the detention order in a manner which deprives the

detenue from knowing the material relevant. The non-compliance of

the aforesaid statutory requirement itself makes the detention order

untenable in law. The detention order is required to be quashed on the

above score alone.

10. The mere passing of the detention order is not sufficient compliance in

terms of the provisions of the Act unless its execution is also in

accordance with law.

11. In view of the fact that the substantive right of the detenue to have

necessary material has been violated as held above and the same being

sufficient ground for quashing of detention order, the Court need not

go into other aspects of the case.

12. In the light of the above, the detention order passed by respondent

No.2 is liable to be quashed. Accordingly, the detention order in

question is quashed. The petitioner-Aijaz Ahmad Sheikh be released

forthwith if not otherwise required in any other case.

(PUNEET GUPTA) JUDGE

Srinagar:

           28.01.2021
           Pawan Chopra

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




PAWAN CHOPRA
2021.01.28 16:39
I attest to the accuracy and
integrity of this document