Rasik Ahmad Nengroo vs State Of Jk & Ors
2021 Latest Caselaw 303 j&K/2

                      IN THE HIGH COURT OF JAMMU AND KASHMIR
                                    AT SRINAGAR

                                           WP (Crl) No. 276/2019

                                                            Reserved on 02.03.2021
                                                            Pronounced on 10.03.2021

           Rasik Ahmad Nengroo                                              ...Petitioner(s)

                         Through: Mr. R. A. Khan, Adv.

                                                  Vs.

           State of JK & Ors.                                             ...Respondent(s)

                         Through: Mr Asif Maqbool, Dy. AG vice Ms. Asifa Padroo, AAG


           Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                             JUDGMENT

1. The present petition has been filed by the petitioner through his father seeking quashing of order dated 9th August 2019 bearing No. 44/DMK/PSA/19 (hereinafter referred to as 'order impugned') issued by respondent No. 2 by virtue of which the petitioner has been detained under the provisions of J&K Public Safety Act.

2. It is submitted that the petitioner was arrested on 4th August 2019 from his home and thereafter he was detained by virtue of the order impugned and was ordered to be lodged in Central Jail, Srinagar temporarily.

3. The order impugned has been assailed on the grounds inter alia that the procedural safeguards envisaged under the Constitution of India as well as The J&K Public Safety Act have not been complied with by the respondent No. 2 while issuing order of detention; that the grounds of detention are vague and on the basis of such vague ground, no prudent man can make effective

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I attest to the accuracy and integrity of this document representation against these allegations; that the grounds of detention have been formulated and prepared by the incompetent authority i.e., Superintendent of Police, Kulgam and the same were required to be prepared and formulated by the detaining authority itself; that the petitioner was not provided with the material on the basis of which the respondent No. 2 has issued the order of detention and except the dossier; that no compelling reasons have been stated by respondent No. 2 while issuing detention order and that the detaining authority has passed the order impugned oblivious to the fact that the petitioner was already granted bail; that the grounds of detention are the replica of the dossier that clearly reflects that there has been non-application of mind on the part of the respondents No. 2.

4. Counter Affidavit has been filed by the respondents in which it is stated that all the constitutional as well as procedural safeguards as envisaged by Article 22 (5) of the Constitution of India and Section 13 of the J&K Public Safety Act have been followed by the respondents while issuing the order impugned. It is further stated in the counter affidavit that the detaining authority has passed the order of detention after deriving a subjective satisfaction and the grounds of detention, the order of detention as well as entire material relied upon by the detaining authority have been furnished to the petitioner. The said detention order was executed by Shri Jangsher Singh, ASI on 10th August 2019 and petitioner was handed over to Central Jail Srinagar for lodgment. The contents of the detention order and the grounds of detention were read over and explained to the detenu in Kashmiri Language which he fully understands and in lieu of which his signatures had been obtained in the execution report. Further the case of the petitioner was referred to the Advisory Board for its opinion and after considering the material, the Advisory Board opined that the detention of the petitioner is necessary, and thereafter, the said order was confirmed by the Government.

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5. In response to the counter affidavit, the petitioner has filed rejoinder in which it has been stated that Mr S. A. Makroo, who was the earlier counsel for the petitioner has been superseded by the present counsel and the earlier counsel on the basis of the record only drafted the petition and did not enquire anything from the father of the petitioner, as a result of which, true facts could not be brought to the notice of this court. It is further stated that the petitioner is a highly qualified person whose actual date of birth is 23rd January 1991 and has completed his Post Graduation, but surprisingly respondent No. 2 in the order impugned has shown the age of the detenu as 19 years and further that he has read upto Secondary School. It is further stated in the rejoinder that the detenu has been shown to have been arrested in three FIRs i.e., FIR No. 9/2017, 49/2018 and 39/2018 of Police Station Ram Munshi Bagh, and the fact remains that in an FIR No. 09/2017, the detenue was released on bail on 1st June 2019 and in FIR No. 49/2018 the detenu was released on bail on 14th February 2019 and in the FIR No. 39/2018 of Police Station Ram Munshi Bagh, the detenu was exonerated by virtue of Section 169 CrPC and it has been wrongly mentioned by respondent No. 2 that the petitioner was also involved in FIR No. 39/2018. It is also stated that after the release of the detenu on bail on 1st June 2019, the detenu was kept in custody till the issuance of the order impugned.

6. The petitioner along-with rejoinder has placed on record the qualification certificate as well as the status report furnished by the Police Station Ram Munshi Bagh in FIR No. 39/2018.

7. Learned counsel for the petitioner has reiterated the grounds taken in the petition and has laid much stress that no documents have been furnished to the detenue so as to enable him to make an effective representation.

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8. Per contra Learned Dy AG, Mr. Asif Maqbool, appearing for the respondents has argued that all the statutory as well as constitutional requirements have been fulfilled by the respondents while passing the order of detention and as such, the detention order is legal.

9. Heard and perused the detention record meticulously.

10.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.

11.One of the contention raised by the petitioner is that he was not supplied with the record relied upon by the Respondent no:2 while issuing the order impugned. The perusal of the grounds of detention reveal that the respondent No. 2 has relied upon three FIRs, i.e, FIR No. 9/2017, under Section 148, 149, 188, 336, 332, 307 RPC of P/S Yaripora, FIR No. 49/2018 under Section 7/27 A Act, 120-B, 307 RPC, 13(2), 16, 20, 38, 39 ULA(P) Act of P/S Yaripora and FIR No. 39/2018 under Section 121-A, 392 RPC, 7/25 Arms Act, 39, ULA (P) Act, 3 PEPO Act, 16, 19, 30 Police Act of P/S Ram Munshi Bagh, Srinagar. However, the perusal of the execution report reveals that the order of detention issued on 9th

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I attest to the accuracy and integrity of this document August 2019 was executed on 10th August 2019 and at the time of execution, copies of FIRs, PSA warrant, grounds of detention, and other relevant papers in total seven leaves were handed over to the petitioner and in acknowledgement whereof the petitioner has signed the execution report. A perusal of the PSA warrant and the grounds of detention reveal that the PSA warrant comprises of one leaf and grounds of detention comprises of two leaves. Perusal of the order of detention further reveals that only two FIRs i.e., FIR No. 49/2018 and 09/2017 were submitted before the detaining authority and these two FIRs comprise of four leaves. Even if it is assumed that seven leaves were handed over to the petitioner, then only these two FIRs i.e., FIR No 49/2018 and 09/2017 were furnished to the petitioner and FIR No 39/2018 was not furnished to the petitioner so it disabled the petitioner to make effective representation against the order impugned. Failure on the part of the respondent No. 2 to supply whole 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 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."

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12. It is further evident from the status report brought on record by the petitioner and the same has not been disputed by the respondents that the petitioner was exonerated in FIR No. 39/2018 of P/S Ram Munshi Bagh. It clearly reflects the non-application of mind on the part of the respondent No. 2 and it seems that the respondent No. 2 has merely acted upon the dossier submitted by the Superintendent of Police, Kulgam and there is no subjective satisfaction of the respondent No. 2 while issuing the order of detention. Even otherwise, the perusal of the grounds of detention reveals that there is no mention as to whether the petitioner was arrested in FIR No. 9/2017 or not. Whereas, the petitioner has placed on record the order of grant of bail dated 1st June 2019 i.e., two months prior to the issuance of detention order. Thus, it is evident that this vital aspect was not brought to the notice of detaining authority. It is well settled law that whenever a detenu is granted bail, the said fact must be brought to the notice of the detaining authority, but that has not been done in this case. Reliance is placed on the judgment of the Supreme Court reported in 2012 (2) SCC 72 Rushikesh Tanaji Bhoite vs. State of Maharashtra & Ors. relevant para of the same is reproduced hereunder:-

"9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, brought must be placed before the detaining authority to enable him to reach at the proper satisfaction."

13. In view of what has been discussed above, on these counts only, the detention order dated 9th August 2019 bearing No. 44/DMK/PSA/19 is required to be quashed, and, as such, the same is quashed. The detenu is ordered to be released forthwith provided he is not required in any other case.

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14. Detention record be returned.

(RAJNESH OSWAL) JUDGE SRINAGAR 10.03.2021 Altaf

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

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