Owais Ahmad Ganie vs Union Territory Of J&K & Ors
2022 Latest Caselaw 612 j&K/2

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

                                                Reserved on:   13.05.2022
                                                Pronounced on: 18.05.2022


                          WP(Crl) No.289/2021

OWAIS AHMAD GANIE                                    ...PETITIONER(S)

             Through: - Mr. Wajid Mohammad Haseeb, Advocate.

Vs.

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

             Through: - Mr. Asif Maqbool, Dy. AG.


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


                                 JUDGMENT

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

No.40/DMP/PA/21 dated 18.10.2021, issued by District Magistrate,

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

terms of the aforesaid order, Owais Ahmad Ganie son of Mehraj-ud-din

Ganie resident of Sathergund Tehsil Kakapora District Pulwama (for

short "detenue") has been placed under preventive detention and lodged

in Central Jail, Kothbalwal, Jammu.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application

of mind, inasmuch as the allegations mentioned in the grounds of

detention have no nexus with the detenue and the same have been

fabricated by the police in order to justify its illegal action of detaining

the detenue. It has been contended that the grounds of detention are

vague, on the basis of 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, inasmuch as whole of the material

which formed basis of the impugned detention order has not been

supplied to the petitioner.

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 urged 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 with 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 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 20.10.2021. 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. According to it, copy of detention order (01

leaf), notice of detention (01 leaf), grounds of detention (03 leaves),

dossier of detention (Nil), copies of FIR, statements of witnesses and

other related relevant documents (Nil), total 05 leaves, have been

supplied to him.

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

detention record, that copy of the police dossier has 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 like the police dossier 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 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) Upon perusal of the grounds of detention, it is revealed that the

argument 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. The grounds, being vague and

lacking in material particulars, 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 18.05.2022 "Bhat Altaf, PS"

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