Jammu & Kashmir High Court - Srinagar Bench
Nisar Ahmad Qazi vs Ut Of J&K & Another on 6 October, 2021
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 24.09.2021
Pronounced on:06 .10.2021
WP(Crl) No.05/2021
Nisar Ahmad Qazi ...Petitioner(s)
Through: - Mr. Wajid Haseeb, Advocate.
Vs.
UT of J&K & another ...Respondent(s)
Through: - Mr. Asif Maqbool, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Nisar Ahmad Qazi (the detenue), has filed this petition through his
uncle, namely, Bashir Ahmad Sheikh, seeking a Writ of Habeas Corpus
for quashing the detention order bearing No. o4/DMP/PSA/21 dated
06.01.2021, passed by District Magistrate, Pulwama (the detaining
authority) with a view to prevent him from acting in any manner
prejudicial to the security of the State. The order is, purportedly, passed
by the detaining authority in exercise of powers conferred under Section
8 of the J&K Public Safety Act, 1978 (for short the Act of 1978),
2) Petitioner has contended that the Detaining Authority has
passed the impugned detention order mechanically without
application of mind, inasmuch as the grounds of detention are mere
reproduction of the dossier. It has been further contended that the
Constitutional and Statutory procedural safeguards have not been
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complied with in the instant case. It has been further urged that the
material which formed basis of the grounds of detention and the
consequent order of have detention not been furnished to the detenue.
3) On being put to notice, the respondents appeared through their
counsel and filed their reply affidavit, wherein it is submitted that
detention was necessitated because of involvement of the detenue in very
serious offences against the State as mentioned in the FIR registered
against him. The detenue was informed that he can make a representation
to the government as well as to the detaining authority against his
detention. It is further claimed in the reply affidavit that all statutory
requirements and constitutional guarantees have been fulfilled and
complied with by the detaining authority. The order has been issued
validly and legally. The respondents have placed reliance on the judgment
of the Supreme Court in Haradhan Saha v. State of W.B (1975) 3 SCC
198. The respondents have produced the detention record to lend support
to the stand taken in the counter affidavit.
4) I have heard learned counsel for the parties and perused the material
available on record.
5) Learned counsel for the petitioner projected various grounds while
seeking quashment of impugned detention order but his main thrust was
on the ground that the detenue has been disabled from making an
effective representation against the order of detention as the material,
which formed base of the grounds of detention and the consequent order
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6) In the cases of preventive detention, a detenue has the right under
Article 22(5) of the Constitution to be furnished with particulars of the
grounds of his detention. The Supreme Court has in Ram Krishan
Bhardwaj v. State of Delhi, AIR 1953 SC 318, while interpreting Article
22(5) of the Constitution, observed that furnishing of grounds of detention
means material sufficient to enable the petitioner to make an effective
representation.
7) In Shalini Soni v. Union of India, (1980) 4 SC 544, the Supreme
Court has observed that 'grounds' in Article 22(5) do not mean mere
factual inferences but means factual inferences plus factual material which
led to such factual inferences. The Court further clarified that copies of
the documents to which reference is made in the grounds must be supplied
to the detenue as part of the grounds.
8) Thus, the detaining authority is required to communicate to the
detenue, (i) grounds of detention; (ii) all the documents referred to in the
grounds of detention; (iii) all the documents and material which the
detaining authority considers while framing his subjective satisfaction;
(iv) detention order and also the police report or dossier if any.
9) The word 'grounds' used in clause (5) of Article 22 of the
Constitution means not only the narrations or conclusions of facts, but also
all materials on which those facts or conclusions which constitute grounds
are based. Such material has to be supplied to the detenue so as to enable
him to make an effective and meaningful representation. The detaining
authority is obliged to mention in the grounds as to on which material it
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based his satisfaction. Failure to do so renders the detention illegal. To
communicate the bare grounds of detention to the detenue will not be
sufficient unless grounds are accompanied by material which the
detaining authority has considered and relied upon. For this, support can
be had from the judgment of this Court in the case of Nazeer Ahmad
Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241.
10) Detention record, as produced by learned counsel for the
respondents, contains a copy of the Execution Report dated
09.01.2021. A perusal of the said report reveals that Executing
Officer has handed over to the detenue detention warrant, grounds of
detention and copy of FIR. The Execution Report does not even
remotely suggest that the detenue has been furnished any other
material.
11) If we have a look at the grounds of detention, it bears reference to
FIR No.360/2016 as also the investigation proceedings emanating
therefrom, which according to the grounds of detention establish
involvement of the detenue in the said FIR. It was incumbent upon the
respondents to provide the copy of the material collected by the
investigating agency during the course of investigation of the aforesaid
FIR on the basis of which involvement of the petitioner in the FIR had
surfaced. This material could be in the shape of statements of witnesses
recorded under Section 161 Cr. P. C or any other document collected by
the investigating agency during the investigation of the case. No such
material has been, admittedly, furnished by the respondents to the detenue.
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12) The grounds of detention also bear reference to a dossier which
most probably was forwarded by the police authorities to the Detaining
Authority. The Execution Report does not suggest that any copy of the
police dossier was provided to the petitioner.
13) In the absence of aforesaid vital material which has formed the basis
of the grounds of detention against the petitioner, it was not possible for
him to make an effective representation against his detention. Thus, his
right under Article 22(5) of the Constitution of India and statutory right
guaranteed to him under Section 13 of the J&K Public Safety Act has been
infringed with impunity. This renders the impugned order of detention
unsustainable in law. While holding so, I am fortified by the judgments
rendered by the Supreme Court in Sophia Ghulam Mohd. Bham v. State
of Maharashtra and others, AIR 1999 SC 3051 and Thahira Haris etc. etc.
v. Government of Karnataka & ors, AIR 2009 SC 2184.
14) For the foregoing reasons, this petition is allowed. The impugned
order of detention is quashed. Direction is issued to the respondents to
release the detenue from the preventive custody forthwith, provided he is
not required in connection with any other case.
15) Detention record be returned back to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
Srinagar
06.10.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
MOHAMMAD ALTAF BHAT
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I attest to the accuracy and
integrity of this document
