Aadil Ahmad Bhat vs Union Territory Of J&K & Anr
2022 Latest Caselaw 539 j&K/2

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

                                                 Reserved on: 22.04.2022
                                                 Pronounced on:09.05.2022


                         WP(Crl) No.168/2021

AADIL AHMAD BHAT                                    ...PETITIONER(S)

            Through: - Mr. Wajid Mohammad Haseeb, Advocate.

Vs.

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

            Through: - Mr. Sajjad Ashraf, GA.


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


                                 JUDGMENT

1) By the instant petition, veracity and legality of the detention order

No.DMS/PSA/83/2021 dated 20.10.2021, issued by District Magistrate,

Srinagar (for brevity "detaining authority") has been challenged. In

terms of the aforesaid order, Aadil Ahmad Bhat (for short "detenue")

has been placed under preventive detention and lodged in Central Jail,

Srinagar.

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 vague, non-existent on which

no prudent man can make a representation against such allegations. It

has been further contended that the Constitutional and Statutory

procedural safeguards have not been complied with in the instant case. It

has been further urged that there has been non-application of mind on

the part of detaining authority while passing the impugned detention

order, inasmuch as the detaining authority has mechanically reproduced

the allegations made in the police dossier.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and insisted that the activities of detenue

are highly prejudicial to the security of the State. It is pleaded that the

detention order and grounds of detention along with the material relied

upon by the detaining authority were handed over to the detenue and the

same were read over and explained to him. That the grounds taken by

the petitioner are legally misconceived, factually untenable and without

any merit. To substantiate their stand taken in the counter affidavit, the

respondents have produced the detention record.

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

(I) That the detenue was not furnished whole of the material to enable him to make an effective representation against his detention.

(II) That the grounds of detention are vague and cryptic, inasmuch as the material particulars of the terrorists of banned organization TRF, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention.

6) So far as the first ground of challenge is concerned, 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 26.10.2021. Report of the Executing Officer in this regard forms part

of the detention record, a perusal thereof reveals that it bears the

signature of the petitioner and according to it, copies of PSA warrant

(one leaf), notice (one leaf), grounds of detention(two leaves), in total 04

leaves, have been supplied to him.

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

detention record, that copies of the detention order and the police dossier

have not at all been supplied to the detenue. 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 an effective

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) It needs no 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

and until the material on which the detention is based, is supplied to the

detenue. The failure on the part of detaining authority to supply the

material renders the detention order illegal and unsustainable. While

holding so, I am fortified by the judgments rendered in Dhananjoy Dass

v. District Magistrate,(AIR 1982 SC 1315), 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).

9) The next ground projected by the petitioner is that the the grounds

of detention are vague and cryptic, inasmuch as the material particulars

of the terrorists of banned organization TRF, as mentioned in the

grounds of detention, have not been disclosed.

10) On perusal of the detention record produced by learned counsel

for the respondents, the ground projected regarding vagueness of the

averments made in the grounds of detention, appears to be forceful.

There is no mention of the particulars of the place and the identity of the

persons/terrorists alleged to have received support of the detenue. The

particulars of the period when the detenue is alleged to have offered

support to the terrorists are also not mentioned in the grounds of

detention. Thus, the grounds, being vague and lacking in material

particulars, as such, the detenue could not have made an effective

representation against his detention. Therefore, there has been violation

of constitutional guarantees envisaged under Article 22(5) of the

Constitution. 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) 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.

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

respondents.

(Sanjay Dhar) Judge

SRINAGAR 09.05.2022 "Bhat Altaf, PS"

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