Wp (Crl) No.229/2022 vs Ut Of Jammu & Kashmirand Others
2022 Latest Caselaw 1394 j&K/2

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                          WP (Crl) No.229/2022
                                                     Reserved on: 18.08.2022
                                         Date of Pronouncement: 30.08.2022
                   [Pronounced through Virtual Mode]
Amir SidiqNajar                                            .........Petitioner
                                 Through:Mr. Tasaduq H. Khwaja, Advocate
                                    Versus
UT of Jammu & Kashmirand others                .........Respondent(s)
                                               Through:Mr. Sajad Ashraf, GA.
CORAM:

           Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                           JUDGEMENT

1. The instant writ petition arises out of the detention order bearing No. DMS/PSA/19/2022 dated 08.04.2022, (hereinafter for short theimpugned order) passed against the detenu, namely, Amir Sidiq Najar, by respondent no.2-District Magistrate, Srinagar (for brevity detaining authority), under and in terms of provisions of the Jammu & Kashmir Public Safety Act, 1978 (for short the 'Act'). The detention order dated 08.04.2022 is challenged by the petitioner through the medium of instant petition and is seeking quashment of the same on the grounds taken in the writ petition.

2. It is being stated in the petition that the detenu is a law-abiding citizen and has never indulged in any subversive activity prejudicial to public order or security of the State. The detenu is stated to have been arrested under sections 151/107 of Code of Criminal Procedure and thereafter detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Kotbalwal, Jammu.

3. The impugned order is being challenged, inter alia, on the grounds that detenu had not been provided copies of the relevant material, like copy of dossier, details of any incidence with regard to the alleged association of the detenu with the terrorist organizations or particular

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incidents regarding his links with secessionist organizations or providing of logistic support / shelter and other facilities to the terrorists referred to in the grounds of detention, material or collected during the course of investigation, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional and statutory rights of the detenu guaranteed under Article 22 (5) of the Constitution of India and Section 13 of Jammu &Kashmir Public Safety Act.

4. On the other hand, respondents, in the reply affidavit filed, have resisted and controverted the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

5. It is being averred by the respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent Central Jail, Kotbalwal, Jammu, for lodgment and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order.

Heard learned counsel for the parties, perused the record and considered the matter.

6. The first ground pressed by the counsel for the petitioner is non-

supply of dossier and all the material relied upon by the detaining authority rendering the detenu unable to file an effective representation against the detention order.

Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police, Srinagar, detaining authority was satisfied that with a view to prevent detenu from acting in any manner prejudicial to the security of the State / Country, it was necessary to detain the detenu under

WP (Crl) No.229/2022

necessary provisions of law. So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. All that has weighed with detaining authority in issuance of order of detention assumes significance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Jammu &Kashmir Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. Failure on the part of detaining authority to supply material, relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. A reference in this regard to the following judgments of the Apex Court becomes imperative. Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567.

7. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K.

Jha, 1987 (2) SCC 22 has made it clear that it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, procedural requirements, as discussed above, have not been followed and complied with by respondents in letter and spirit and as a consequence thereof, petition on hand requires to be allowed.

8. Next ground of challenge urged by the counsel for the petitioner is that the petitioner submitted a representation against the detention which had not been considered by the respondents.

WP (Crl) No.229/2022

Perusal of the record of the petition reveals that a representation has been made on behalf of the detenue through his father, acknowledged to have been received by the office of District Magistrate, Srinagar. The said contention has not been denied by the respondents in their reply affidavit, thus, resulting into drawing an adverse inference against the respondents in this regard. The failure of the respondents to consider the representation submitted by the detenue indisputably amounts to violation of the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgement of the Apex Court passed in case titled as Rahmatullah v. State of Bihar and others reported in 1979 (4) SCC 559, would be relevant and germane here wherein at paragraph 4, it is noticed and observed as under:-

"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non- consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution."

9. It is germane to mention here that the judgement referred to and relied upon by the counsel for the respondents are not applicable to the facts and circumstances of the case being misplaced and misdirected and do not lend any support thereof to the case of the respondents.

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10. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No. DMS/PSA/19/2022 dated 08.04.2022, is quashed, with the direction to the respondents including the Jail authorities concerned to release the detenu forthwith from preventive custody unless required in any other case.

11. Disposed of along with all connected CrlM(s).

12. No orders as to costs.

(Javed Iqbal Wani) Judge Srinagar 30.08.2022 TASADUQ SAB:

Whether approved for reporting?Yes/ No.