Showkat Ahmad Ganie vs Union Territory Of J&K & Anr
2022 Latest Caselaw 148 j&K/2

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

                                                    Reserved on: 24.02.2022
                                                   Pronounced on: 02.03.2022


                           WP(Crl) No.218/2021

SHOWKAT AHMAD GANIE                                  ...PETITIONER(S)

             Through: - Mr. M. WajidHaseeb, Advocate
Vs.

UNION TERRITORY OF J&K & ANR.            ...RESPONDENT(S)
        Through: - Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE


                                    JUDGMENT

1) Challenge in this petition is thrown to the order bearing

No.DMS/PSA/64/2021 dated 20.10.2021, issued by District

Magistrate, Srinagar(for brevity "Detaining Authority") whereby Shri

Showkat Ahmad Ganieson of Abdul Rahim Ganie resident of Old

Barzulla, Srinagar (for short "detenue") has been placed under

preventive detention and directed to be lodged in District Jail,

Kupwara.

2) It is being stated in the petition that the detenue is a law abiding

andpeace loving citizen and has never involved in any subversive

activityprejudicial to the public order or security of the State. The detenue

isstated to have been arrested in the second week of October, 2021 and was

taken to Police Station, Saddar, and while being in custody came to

bedetained under preventivecustodyby therespondentsin

termsofimpugnedorder.

3) The impugned order is being challenged on the grounds inter-alia

thatdetenue had not beenprovided copies of the relevant material like copy

of dossier or any other material which formed the basis of the grounds of

detention, thus depriving him to file an effective representation

againsthisdetention.Thesaidfailureisstatedtohaveinfringedtheconstitutional

right of the detenue guaranteed under Article 22 (5) oftheConstitutionof

India.

4) It is being next urged in the grounds of challenge that although

arepresentationwassubmittedagainstthedetentionby thedetenuethrough his

wife before the respondents yet same was not consideredrendering

thedetentionorder,assuch, notsustainableinlaw.

5) Per contra, respondents in their reply affidavit filed in opposition

tothe petition resist and controvert the contentions raised and

groundsurged by the petitioner and have stated in their reply affidavit that

theorder of detention is preventive and not punitive in nature, while it

isbeing admitted by respondents that detenue was detained pursuant

toimpugnedorder.

6) Itisbeingstatedthatallstatutoryrequirementsandconstitutionalguaran

tees have had been fulfilled and complied with while detainingthedetenue.

7) Itisbeingnextstatedthatimpugnedorderwasexecutedby

oneMohammad Mukhtar No.579/CID of P/S Sadder on 27.10.2021

andthat the detenue was handed over to the Superintendent 3WP(Crl.) No.218/2021

concerned,forlodgmentandthatthecontentsofdetentionorder/warrant and

grounds of detention were read over and explainedto the detenue in the

language which he fully understood and in

lieuthereofthedetenuesubscribedhissignaturesontheexecutionreport/order.

8) It is being further stated that the detenue was well informed about

theright of making his representation and that despite having received

theentire material the detenue did not chose to make any

representationagainst hisdetention.

9) It is being next stated that the Advisory Board after considering

thematerial placed before it, in terms of Section 16 of the Act held

thatthereissufficientcausefordetentionofthedetenue,whereuponreceipt of

the said opinion of theAdvisory Board the Governmentconfirmed order of

detention against the detenue. Respondents in theprocess are stated to

have complied with all statutory, constitutionalprovisions and followed all

requisite formalities without violating anyofthem.

10) Heardlearnedcounselforthepartiesandconsideredthematte

r.

11) Coming to the first ground of challenge noted in the

preceding paras, that the material which formed the basis of the grounds

of detention has not been furnished to the detenue. Upon perusal of the

detention record it gets revealed that only two leaves consisting of copies

of detention warrant and grounds of detention have been furnished to the 4WP(Crl.) No.218/2021

detenue, which clearly shows that the copy of dossier and other material

which has formed the basisof the order of detention have not been

furnished to the detenue thereby depriving him from making an effective

representation against his detention. It needs no emphasis that the

detenue cannot be expected to make a meaningful exercise of his

constitutional and statutory rightsguaranteed under Article 22(5) of the

Constitution of India. Failure on the part of detaining authority to supply

whole of the material relied upon by it at the time of passing impugned

detention order renders the impugned order illegal and unsustainable.The

aforesaid position is supported by the view of the Apex court taken in

case titled as "Sophia GulamMohd. Bham v. State of Maharashtra

&ors (AIR 1999 SC 3051), ThahiraHaris etc. etc. Vs. Government of

Karnataka &Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti

alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias

Iqbal alias Gulam Vs. State of Gujarat and others", (1982) 3 SCC

440.

12) The second ground of challenge urged in the petition is that

thepetitioner submitted a representation against his detention whichhad

notbeen consideredbythe respondents.

13)        Perusaloftherecordofthepetitionrevealsthatarepresentation has

been      made       on       behalf      of     the      detenue        by

hisfatherseeminglyhavingbeenreceivedbytheoffice of District Magistrate,

Srinagar, on 01.11.2021. The saidcontention has not been denied by the 5WP(Crl.) No.218/2021

respondents in their replyaffidavit thus resulting into drawing an adverse

inference againstthe respondents in this regard. The failure of the

respondents toconsider the representation submitted by the detenue

indisputablyamounts to violation of the provisions of Article 22(5) of

theConstitution.Areferenceinthisbehalftothejudgementofthe Apex Court

passed in casetitled as Rahmatullah Vs. State

ofBiharandOrs.,reportedin1979(4)SCC559,wouldberelevant and

germane here wherein at Para 4, it is noticed andobservedasunder:-

"4. The normal rule of law is that when a personcommits an offence or a number of offences, heshould be prosecuted and punished in accordancewith the normal appropriate criminal law; but if heis sought to be detained under any of the preventivedetentionlawsasmayoftenbenecessar ytoprevent further commission of such offences, thenthe provisions of Article 22(5) must be compliedwith.Sub-

Article(5)ofArticle22 reads:

Whenanypersonisdetainedinpursuanceo fanordermadeunderanylawprovidingforpreven tivedetention,theauthoritymakingtheorder shall, as soon as may be, communicate tosuch person the grounds on which the order hasbeenmadeandshallaffordhimtheearliestopp ortunity of making a representation against theorder.

ThisSub-

Articleprovides,interalia,thatthedetainingauth orityshallassoonasmaybecommunicate the grounds of detention and shallaffordhim theearliestopportunityofmakingarepresentatio n against the order. The opportunityof making a representation is not for nothing. Therepresentation, if any, submitted by the detenu ismeantforconsiderationbytheAppropriateAuth oritywithoutanyunreasonable 6WP(Crl.) No.218/2021

delay,asitinvolvesthelibertyofacitizenguarante edbyArticle19oftheConstitution.Thenon- considerationoranunreasonablybelatedconsid eration of the representation tantamount tonon-compliance of Sub-Article (5) of Article 22 oftheConstitution."

14) In view of the aforesaid position obtaining in the matter the

othergroundsurgedinthepetitionneednottobedealtwithandessentiallypaleint

oinsignificance.

15) The judgement referred to and relied upon by the counsel for

therespondents titled as "Shiv RatanMakim Vs. Union of Indiaand

Others, reported in 1986 SC 610", is not applicable to

thefactsandcircumstancesofthecasebeingmisplacedandmisdirected and

does not lend any support thereof to the case oftherespondents.

16) Viewed thus, in the context what has been observed, analyzed

andconsidered in the preceding pars, instant petition is allowed

andconsequent to which the impugned order of detention bearing

No.DMS/PSA/64/2021 20.10.2021, is quashed, with the directionthe

respondents to release the detenue forthwith from preventive custody,

unless the detenue is required in any other case.

17) The record, as produced, be returned to the learned counsel for the respondents.

(Javed Iqbal Wani) Judge Srinagar 02.03.2022 "Bhat Altaf, PS"

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


ISAQ HAMEED BHAT
2022.03.02 15:56
I attest to the accuracy and
integrity of this document