Umer Rashid Dar vs Union Territory Of J&K & Anr
2021 Latest Caselaw 1454 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                              Reserved on:    29.10.2021
                                              Pronounced on: 16.11.20210


                         WP(Crl.) No.170/2020

UMER RASHID DAR                                         ...PETITIONER

             Through: - Mr. G. N. Shaheen, Advocate.
Vs.

UNION TERRITORY OF J&K & ANR.                      ...RESPONDENT(S)

             Through: - Mr. Hakim Aman Ali, Dy. AG.


CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                 JUDGMENT

1) By the instant petition, quashment of order

No.33/DMP/PSA/20 dated 31.10.2020, issued by District

Magistrate, Pulwama (for brevity "Detaining Authority") is sought.

In terms of the aforesaid order, Umer Rashid Dar son of Ab. Rashid

Dar resident of Drabgam Tehsil Rajpora District Pulwama (for short

"detenue") has been placed under preventive detention and lodged in

Kotbhalwal Jail, Jammu.

2) Petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without

application of mind. It has been further contended that the Constitutional

and Statutory procedural safeguards have not been complied with in the

instant case. It has also been urged that the allegations made against the

detenue in the grounds of detention are vague. Petitioner has gone on to

contend that he has not been informed as to before which authority he had

to make a representation.

3) The writ petition is opposed by the respondents who have filed

reply affidavit on behalf of the detaining authority. The factual

submissions made by the petitioner have not been refuted in the reply

affidavit. The respondents have relied upon the judgment of the Supreme

Court in the case of Hardhan Saha v. State of W.B (1975) 3 SCC 198, and

submitted that the detention order is based on the subjective satisfaction

of the detaining authority and the same cannot be gone into by this Court

in exercise of its extraordinary writ jurisdiction. It is contended that the

detenue has been detained only after following the due procedure; that

there has been proper application of mind on the part of the Detaining

Authority while passing the impugned order and that the detenue has been

provided all the material. The learned counsel for the respondents also

produced the detention records to lend support to the stand taken in the

counter affidavit.

4) I have heard learned counsel for parties and perused the

detention record.

5) Learned counsel for the petitioner, while seeking quashment of

the impugned order, projected various grounds but his main thrust

during the course of arguments was on the ground that the

constitutional and statutory procedural safeguards have not been

complied with in the case of the petitioner, inasmuch as whole of the

material forming basis of the grounds of detention has not been

furnished to him.

6) A perusal of the detention record produced by learned counsel for

the respondents reveals that the material is stated to have been received

by the petitioner on 02.11.2020. Report of the Executing Officer in this

regard forms part of the detention record, a perusal thereof reveals that it

bears the signature of petitioner and according to it, copy of detention

order (01 leaf), notice of detention (01 leaf), grounds of detention (02

leaves), dossier of detention (Nil), copies of FIR, statements of witnesses

and other related documents (Nil), total 04 leaves, have been supplied to

him.

7) It is clear from the execution report, which forms part of the

detention record, that copy of the dossier has not at all been supplied to

the detenue. Apart from this, if we have a look at the grounds of detention,

it bears reference to FIR No.29/2020. It was incumbent upon respondents

to furnish not only the copy of the FIR but also the statements of witnesses

recorded during investigation of the said FIR as well as the other material

on the basis of which petitioner's involvement in the FIR is shown. Thus,

contention of the petitioner that whole of the material relied upon by the

detaining authority, while framing the grounds of detention has not been

supplied to him, appears to be well-founded. Obviously, the petitioner has

been hampered by non-supply of these vital documents in making a

representation before the Advisory Board, as a result whereof his case has

been considered by the Advisory Board in the absence of his

representation, as is clear from the detention record. Thus, vital

safeguards against arbitrary use of law of preventive detention have

been observed in breach by the respondents in this case rendering the

impugned order of detention unsustainable in law.

8) Viewed thus, the petition is allowed and the impugned order of

detention bearing No. 33/DMP/PSA/20 dated 31.10.2020, issued by

respondent No.2-District Magistrate, Pulwama, is quashed. The

detenue is directed to be released from the preventive custody

forthwith provided he is not required in connection with any other

case.

9) The detention record be returned to the learned counsel for the

respondents.

(Sanjay Dhar) Judge

SRINAGAR 16.11.2021 "Bhat Altaf, PS"

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




MOHAMMAD ALTAF BHAT
2021.11.16 14:33
I attest to the accuracy and
integrity of this document