High Court Of Jammu & Kashmir And ... vs State Of
2022 Latest Caselaw 2152 j&K/2

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
                 SRINAGAR
                                             WP(Crl ) No. 446 /2022
                                             Reserved On : 22.11.2022
                                             Pronounced On: 05.12.2022
MUDASIR AHMAD DAR.                                               ......Petitioner(s)


                   Through: Mr. Shuja- Ul- Haq, Advocate
UNION TERRITORY OF JK & ANR.
                          Versus
                                                          .....Respondent(s)
                   Through: Ms. Insha Rashid, GA
     CORAM: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                 JUDGEMENT

1. Through the medium of instant writ petition, quashment of Order No. 64

DMB/PSA/2022 dated 27.06.2022, passed by the respondent No. 2- District

Magistrate, Baramulla (hereinafter called 'Detaining Authority') in exercise

of powers under Section 8 of the Jammu & Kashmir Public Safety Act,

1978, in terms whereof brother in-law of the petitioner namely, Mudasir

Ahmad Dar S/O Mohammad Shaban R/O Hathlangoo Dangerpora, Sopore,

District, Baramulla (for short 'detenue') was ordered to be detained and

lodged in Central Jail Kotbhalwal, Jammu, has been sought. The petitioner

seeks release of the detenue forthwith from the custody and also a

compensation of Rs. 10.00, Lacs for illegal detention of the detenue.

2. Though the detention order has been challenged on several grounds, but the

main ground taken by the petitioner is that the order has been passed without

application of mind, as the allegations attributed to the detenue in the

grounds of detention as also in the dossier are fabricated and have no nexus

with the detenue. It has been further urged that the grounds of detention are

vague, non-existent and no prudent man can make a representation against

WP(Crl) No.446/2022

such allegations. The constitutional and statutory procedural safeguards have

not been followed in the instant case, inasmuch as whole of the material

which formed basis of the impugned detention order have not been supplied

to the detenue.

3. The respondents in their counter have defended the impugned detention

order, stating therein that the detaining authority after being satisfied on the

basis of the material available including the dossier came to the conclusion,

that it is necessary to prevent the detenue from acting in any manner

prejudicial to the 'maintenance of security of the State' and placed the

detenue under preventive detention. It is stated that the detention of the

dentenu has been ordered strictly in accordance with the provisions of J&K

Public Safety Act, 1978 (for short 'the Act') and the procedural safeguards

prescribed under the provisions of the Act have been followed and the rights

guaranteed to the detenu under the Constitution are protected.

4. I have heard learned counsel for the parties and perused the record produced

by learned counsel for the respondents.

5. During the course of arguments, Mr. Shuja-Ul-Haq, learned counsel for the

petitioner raised many grounds but laid main thrust on the ground that the

material/documents on which the impugned detention order has been passed

have not been provided to the detenue, resultantly, he couldn't make an

effective representation. It has been further submitted that the grounds of

detention are cryptic, insofar as the grounds of detnetion does not disclose

the identity or particulars of the person(s), affiliated with the banned terrorist

organizations with whom the detenue has developed the contacts which also

prevented him from making an effective representation.

WP(Crl) No.446/2022

6. The ground that entire the material has not been furnished to the detenue

also gets substantiated as the record would reveal that certain documents

have been furnished to the detenue. The documents styled as "receipt of

grounds of detention & other relevant record" which bears signature of the

detenue reflects that only grounds of detention/notice/detention order, total

four leaves, have been handed over to the detenue.

7. It is thus clear from the execution report, forming part of the detention

record, that police dossier has not at all been supplied to the detenue.

Therefore, the arguments advanced by Mr. Shuja-Ul-Haq, learned counsel

for the petitioner that entire material relied upon by the detaining authority,

while framing the grounds of detention, has not been supplied to the detenue

holds good. As such, the detenue has been prevented from making an

effective representation against his detention.

8. It needs emphasis that the detenue cannot be expected to make an effective

and purposeful representation which is his constitutional right, guaranteed

under Article 22(5) of the Constitution of India, unless the material on which

the detention is based, is supplied to him. The failure on the part of the

detaining authority to supply the whole of the material renders the detention

order illegal and unsustainable under law. The support can be had from the

judgments rendered in Sophia Ghulam MJohd. Bham V. State of

Maharashtra and others (AIR 1999 SC 3051 ) and, Tahira Haris Etc. Etc.

V. Government of Karnataka & Ors (AIR 2009 SC 2184)

9. Another ground that has been raised by learned counsel for the petitioner

while seeking quashment of the impugned detention order is that the grounds

of detention are vague and cryptic, as the same does not disclose the fact

how the detenue is affiliated with the banned organization of Hizbul

WP(Crl) No.446/2022

Mujahjindeen outfit and whom he has transported or provided any kind of

shelter. The grounds of detention, nowhere reflects the name(s) of the

militants whom the detenue have transported or provided any kind of shelter.

Therefore, there has been violation of constitutional guarantees, envisaged

under Act. The detention order, as such, is illegal and unsustainable. In my

aforesaid view, I am fortified by the judgments of the Supreme Court in the

case of Jahangir khan Fazal Khan Pathan vs. Police Commissioner,

Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nane khan Pathan v. Police

Commissioner, Ahmadabad, AIR 1989 SC 2265. 11)

10. Viewed thus, the petition is allowed and the impugned order of detention 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.

11. The detention record be returned to the learned counsel for the respondents

against proper receipt.

SRINAGAR 05.12.2022 Abdul Rashid, PS (MOKSHA KHAJURIA KAZMI) JUDGE

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

WP(Crl) No.446/2022