Zahoor Abbas Khan vs Union Territory Of J&K And Another
2021 Latest Caselaw 767 j&K/2

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

                                              Reserved on   04.06.2021
                                              Pronounced on 15.07.2021


                                              WP(Crl.) No. 131/2020


Zahoor Abbas Khan                                     ...Petitioner/Applicant(s)

                 Through :-             Mr. Sheikh Mohd. Saleem, Advocate

                v/s
                  <




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

                 Through :-              Mr. Sajjad Ashraf, GA
Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                   JUDGMENT

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

petitioner has questioned the order of detention bearing No. DMS/PSA/2020/217

dated 11.07.2020 issued by the respondent No. 2, by virtue of which the petitioner

has been ordered to be detained under the Jammu and Kashmir Public Safety Act,

1978 (for short the Act).

2. It is stated that the petitioner was arrested on 07.07.2020 and has been

in illegal preventive detention since then. The petitioner has questioned the order

of detention inter alia on the ground that the constitutional as well as procedural

safeguards as envisaged by the Constitution of India as well as under the Act, have

not been complied with by the Detaining Authority while passing the detention

order. The grounds of detention are vague and ambiguous and no date of alleged

activity has been mentioned and on such vague grounds, no prudent man can make

a representation against these allegations. No material that was relied upon by the

detaining Authority while passing the order impugned was furnished to the

petitioner; that there was no material except the dossier with the respondent No. 2

on the basis of which the detention order has been passed and the grounds of

detention are verbatim reproduction of the dossier.

3. The respondents have filed the response, in which they have stated

that the petitioner has been detained pursuant to the order of detention and they

have categorically stated that the procedural as well as statutory safeguards as

enshrined under Article 22(5) of the Constitution of India and section 13 of the

Act, have been complied with by the respondents while passing the detention

order. It is further stated that they have supplied all the requisite documents to the

petitioner so as to enable him to make an effective representation to the detaining

authority and to the Government. In pursuance of the order of detention, the

warrant was executed by the Executive Officer, Mohd Shafi, ASI and all the

documents, those have been relied upon by the Detaining Authority, were handed

over to the petitioner. The contents of the detention order/warrant and the grounds

of detention were read over and explained to the petitioner in the language he fully

understood. The case of the petitioner was referred to the Advisory Board and after

receipt of the opinion of the Advisory Board, Government vide order No.

Home/PB-V/1392 of 2020 dated 17.07.2020 has approved the order of detention

against the petitioner. It is further stated that the petitioner remained active in anti-

national activities as well as is an active member of the proscribed organization of

Jamat-e-Islami, which has been declared as unlawful association by the

Government on 28.02.2019 under section 3 of the ULA(P) Act and propagates the

ideology of separatists and is a strong supporter of secessionist ideology

propagated by the said organization. It is stated that the petitioner is a close

confidante of Zahoor Ahmad Bhat and he is also in touch with the militant outfits

and supported the extremists and militant in the Jammu and Kashmir.

4. Respondents have produced the soft copy of the detention record.

5. Mr. Sheikh Mohammad Saleem, learned counsel for the petitioner has

vehemently argued that the grounds of detention are vague and there is no mention

of date, month and year in which the petitioner has undertaken any illegal activity

and grounds of detention are based on surmises and conjectures. He further

submitted that no material has been furnished to the petitioner so as to enable him

to make an effective representation to the Detaining Authority as well as to the

Government.

6. On the contrary, Mr. Sajjad Ashraf, learned Dy. AG appearing for the

respondents has vehemently argued that all the documents have been served upon

the petitioner. Mr. Ashraf has also argued that the detention order is legal and all

procedural and statutory safeguards have been complied with while passing the

order of detention, as such, the order of detention is sustainable in the eyes of law.

He further argued that the petitioner is a threat to the security of the State as he is

active office bearer of the banned organization.

7. Heard and perused the detention record meticulously.

8. 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, the Apex Court has held 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.

9. A perusal of the grounds of detention reveal that the Senior

Superintendent of Police (SSP), Kupwara vide letter dated 07.07.2020 submitted

the dossier of activities in respect of the petitioner to the respondent No. 2 and the

learned District Magistrate, respondent No. 2 herein, instead of passing any order

on the basis of said dossier, directed the SSP concerned to re-examine the matter

and the SSP concerned vide letter dated 10.07.2020 re-submitted the case and in

the said letter it was stated that the report was sought from the Dy. S.P. Lolab and

SHO, Police Station, Lalpora and in the said report, it was stated that the subject is

an active member of Jamat-e-Islami and besides in view of prevailing situation in

the valley, it was suggested that there is every apprehension that the petitioner may

get involved in the anti-national activities and provoke the people especially the

youth to act against the interest of the State. The dossier activities was re-

submitted along with the field report submitted by the Dy. SP Lolab and SHO,

Police Station, Lalpora but on perusal of the detention record it is evident that the

said report has not been submitted before the Court for its perusal and also the

acknowledgement of the receipt of material dated 18.07.2020 reveals that the order

of detention one leaf, grounds of detention three leaves, notice to the petitioner one

leaf, dossier of activities four leaves, translated copy of the notice to the petitioner

one leaf i.e. total 10 leaves were handed over to the petitioner. The report of the

Dy. S. P. and SHO that was relied upon by the Detaining Authority has not been

furnished to the petitioner. It is only after the petitioner is supplied all the material

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

the Government and if the same is not done, he is deprived of his valuable

constitutional right. 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, the relevant para is reproduced as 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."

10. Otherwise also, a bare perusal of the dossier activities as well as

grounds of detention reveal that except the fact that the petitioner is an office

bearer of Jamat-e-Islami, which is a banned organization, the respondents have

not mentioned any activity, in which the petitioner has ever indulged in past that

give rise to the apprehension to the respondents that the petitioner may indulge in

illegal activities causing threat to the security of the region. No doubt the court

cannot exercise the appellate power over the subjective satisfaction arrived at by

the Detaining Authority but nonetheless, the court can look into as to whether

there was any material before the Detaining Authority so as to form an opinion

that the activities of the petitioner is prejudicial to the interest of the security of

the State and the grounds of detention in the instant case are vague having no

specific details, as such, the order of detention is not sustainable on this ground as

well.

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

DMS/PSA/2020/217 dated 11.07.2020 is quashed. Petitioner (detenue) be set free

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

(RAJNESH OSWAL) JUDGE Srinagar:

15.07.2021
Rakesh
                         Whether the order is speaking:      Yes/No
                         Whether the order is reportable:    Yes/No