Waqar Younis Sheikh vs Union Territory Of J&K And Another
2021 Latest Caselaw 12 j&K/2

                                                                           Sr. No. J2



             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
                                                Pronounced on: 28.01.2021

                                                   WP(Crl) No. 76/2020
                                                   CrlM No. 328/2020


Waqar Younis 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-Waqar Younis Sheikh @ Younis Molvi S/o Mohammad

Shafi Sheikh through his father has challenged detention order No.

08/DMP/PSA/20 dated 20.06.2020, passed by respondent No.2, on the

ground that there was no justification to pass detention order against

the said Waqar Younis Sheikh; that the two FIRs 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 granted

bail in FIR No. 132/2020 but there is no mention of this fact in the

detention order; that the detaining authority has not applied 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.

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 preventive detention and prosecution have different application.

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 the Government Order No.

Home/PB-V/1303 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/1504 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

from time to time. The detenue has been lodged in Central Jail,

Jammu, Kot Bhalwal.

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-

Waqar Younis. The receipt of detention papers also records the

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

contents of aforesaid documents.

9. The issue which is required to be considered in the first instance 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

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 has indeed relied upon the dossier and

agreed with what has been stated in the dossier. As per the grounds of

detention the petitioner is instigating the youth of the area to carry out

the stone pelting and other like activities to disturb the peace and

tranquility in the area. The normal laws are not sufficient to deter him

from indulging in such activities. Thus, the order is passed to prevent

the petitioner from indulging in the activities which are prejudicial to

the maintenance of public order. FIR No. 119/2020 and FIR No.

132/2020 of Police Station, Pulwama have been registered against the

petitioner for various offences. Both the FIRs stand registered against

the detenue on more or less for the same offences. The FIRs 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 they include

contents of the PSA warrant, notice (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 FIR and the statement of the witnesses

recorded in FIR No.132/2020. Undisputedly, the petitioner has not

been provided any material supporting the detention order except for

three leaves. The Court finds that no reason has been given in the reply

nor the record provides any clue for not providing the material to the

petitioner while executing the warrant of detention. Merely providing

the grounds of detention without providing the other material which

formed the basis for the detention order, without doubt, is in violation

of the statutory requirement more so when the respondents have not

been able to explain the omission of not providing the necessary

material to the petitioner. Failing to supply the all important material

which may be in the form of FIR or the statement of the witnesses or

any other document prevents the petitioner to have knowledge of the

relevant material which formed basis of the detention order. Not only

that, it also prevented the petitioner to make effective and purposeful

representation before the Advisory Board constituted under the Public

Safety Act or the government. The courts time and again have

deprecated the execution of the detention order in such a manner.

There can be no escape for the detaining authority from providing the

material to the detenue. The non-compliance of the 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 Court having held that the statutory requirement of providing

relevant material to the detenue having been not complied with and

that the order of detention is required to be quashed on that ground

alone, the Court is of the view that there is no need to go into other

aspects of the matter.

11. 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 detenue-Waqar Younis Sheikh be released

forthwith if otherwise not 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