Jammu & Kashmir High Court

Mohd Iqbal vs Union Territory Of J&K And on 3 May, 2021

             HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                    (Through Virtual Mode)


                                             WP (Crl.) No. 06/2021

                                             Pronounced on 3rd .05.2021

Mohd Iqbal                                                .... Petitioner(s)

                                 Through:- Mr. Ahsan Mirza, Advocate

                          V/s

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

                                 Through:- Mr. Bhanu Jasrotia, GA

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                                JUDGMENT

01. The District Magistrate Rajouri vide Order No.

DMR/INDEX-01 of 2020 dated 30.07.2020 has placed the detenu under

detention under section 8 of the Jammu and Kashmir Public Safety Act,

1978 with a view to prevent him from acting in any manner prejudicial to

the maintenance of public order.

02. The impugned detention order has been challenged by the

detenu through his father Mohd. Shafi. The detenu has assailed the order

of detention amongst others on the following grounds:

(i) that the detenu has not been provided all the material

relied upon by the Detaining Authority preventing him from

making an effective representation; (ii) that the Detaining

Authority has failed to explain the grounds of detention and

material relied upon by him in the language, he understand

and has, thus, deprived the detenu of his right to make an

effective representation and (iii) the detention order is based

on total non-application of mind by the Detaining Authority

and the same are in verbatim reproduction of the dossier.

03. Mr. Bhanu Jasrotia, learned Government Advocate has filed

reply as well as produced the detention record.

04. The stand taken by him in the reply is that the Detaining

Authority has complied with all the constitutional guarantees and statutory

requirements as required while passing the impugned order of detention.

The Detaining Authority has passed the detention order after arriving at its

subjective satisfaction that the detenu was required to be placed in

detention.

05. Heard learned counsel for the parties and perused the record

also.

06. The detention has been challenged on the ground that the

detenu was not provided all the material relied upon by the Detaining

Authority while passing the order of detention. Perusal of the record

reveals that the receipt of detention documents available on record reflects

that the detenu has received total (6 leaves) copy of detention warrant (01

leaf), grounds of detention (04 leaves), notice of detention (01 leaf) copy

of dossier ( ) and other related documents ( ) from the Executing Officer

Inspector Aijaz Perviaz. The dossier and other related material while

passing the order of detention were not supplied to the detenu. This has

resulted infraction of his right to make an effective representation.

07. Non-supply of all the material relied upon by the Detaining

Authority while ordering the detention of the detenu debars him of his

fundamental right as guaranteed under Article 22(5) of the Constitution of

India to make effective representation to Government against his

detention. The detenu would not be able to exercise his right of making

effective representation until and unless he is supplied with all the

material relied upon by the Detaining Authority, as he must know what

weighed in the mind of Detaining Authority while passing the order of

detention in order to make an effective representation.

08. The Apex Court in Sophia Ghulam Mohd. Bham V. State

of Maharashtra and others, AIR 1999 SC 3051, while considering

similar proposition has observed as under:-

"... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language....."

09. Similarly, in S. Gurdip Singh v. Union of India and others,

(1981) 1 SCC 419, the Supreme Court, while reiterating legal position,

observed that failure to furnish documents or materials which formed the

basis of detention order along with grounds of detention and even on

demand subsequently made by detenu, would amount to failure to serve

grounds of detention and, therefore, would vitiate detention order and

made it void ab initio.

10. It is urged that there is total non-application of mind by the

Detaining Authority, while passing order of detention. The detenu was

detained on the basis of grounds of detention in which Detaining

Authority has relied on FIR Nos. 21/2016, 87/2016, 101/2016 and Daily

Diary report No. 10.

11. Petitioner's counsel submits that the detenu was released on

bail in all the aforementioned FIR's. Record reveals that detenu was

granted bail in FIR No. 65/2020 on 28.07.2020. The Detaining Authority

has, however, failed to show any awareness to this fact. The Detaining

Authority is under an obligation to consider and analyze all the

circumstances and material available and then arrive at a conclusion about

placing a person under detention, however, non-mention of grant of bail in

this FIR is a serious lack which give arise to influence that there is total

non-application of the mind by Detaining Authority.

12. A similar issue arose for consideration in Anant Sakharam

Raut and others V. State of Maharashtra and another, AIR 1987 SC

137, has held as under:

"5....... the one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1- 1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in three cases. This indicates a total

absence of application of mind on the part of the detaining authority while passing the order of detention. "7......... that there was clear non-application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the Judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith.........."

13. In Rushikesh Tanaji Bhoite V. State of Maharashtra &

others, (2012) 2 SCC 72, It was held that;

"8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on August 14, 2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, 1st Class, Dharangaon much before the issuance of detention order dated January 10, 2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the detenu on August 15, 2010.

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, must be placed before the detaining authority to enable him to reach at the proper satisfaction."

The failure on the part of the Detaining Authority to consider

this material fact of grant of bail orders vitiates the order of detention as

the same indicates non application of mind.

14. In view of the aforementioned principle of law, the detention

order passed by the Detaining Authority is unsustainable. Accordingly,

this petition is allowed and impugned detention Order No. DMR/INDEX-

01 of 2020 dated 30.07.2020 passed by District Magistrate, Rajouri, is

quashed. The detenu- Mohd. Iqbal S/o Mohd. Shafi is ordered to be

released from the custody forthwith provided he is not required in any

other case.

15. Detention record be handed over to learned counsel for the

respondents by the Registry against proper receipt.