Abdul Rashid Lone vs Ut Of J&K And Anr
2022 Latest Caselaw 661 j&K/2

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


                                                 Reserved on: 05.05.2022
                                                 Pronounced on:21.05.2022

                          WP(Crl.) No.108/2021


ABDUL RASHID LONE                                          ...Petitioner(s)

             Through: - Mr. Sajad Geelani, Advocate.
Vs.

UT OF J&K AND ANR.                               ...Respondent(s)

             Through: - Mr. Sajad Ashraf, GA.


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


                                  JUDGMENT

1) Challenge in this petition is to the order No.DMS/PSA/31/2021

dated 29.07.2021, issued by District Magistrate, Srinagar-respondent No.2

herein, in terms whereof, Shri Abdul Rashid Lone S/o Ghulam Ahmad

Lone R/o Chattergul Kangan A/P Dangerpora Tailbal, Srinagar

(hereinafter referred to as the detenue), has been placed under preventive

custody and lodged in Central Jail, Srinagar.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order without application of mind. It has

been further contended that the Constitutional and Statutory procedural

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

been urged that the allegations made against the detenue in the grounds of

detention are vague and that the material forming the basis of the

impugned order of detention and translated version thereof has not been

provided to the detenue who is a semi-literate person. The petitioner has

further contended that the detaining authority has not spelt out the

compelling reasons while passing the impugned order.

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

averments made in the petition and stated that they have followed the

provisions of J&K Public Safety Act. It is contended that the detenue has

been detained only after following due procedure; that the grounds of

detention were read over to the detenue; that there has been proper

application of mind on the part of the Detaining Authority while passing

the impugned order and that the detenue has been provided all the

material. The learned counsel for the respondents also produced the

detention records to lend support to the stand taken in the counter

affidavit.

4) Considered the rival submissions and perused the material available

on the file as also the detention record as produced by the learned counsel

for the respondents.

5) Learned counsel for the petitioner highlighted various grounds

while seeking quashment of impugned order but the main grounds

that have been argued during the course of arguments are that the detenue

was not furnished whole of the material which formed basis of the

impugned order of detention thereby depriving him from making an

effective representation against his detention and that the detenue was

already implicated in various FIRs and there were no compelling reasons

for the Detaining Authority to make the impugned detention order and

that the Detaining Authority has not spelt out the compelling reasons for

detaining the detenue under preventive laws.

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

02.08.2021. Report of the Executing Officer in this regard forms part of

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

petitioner and according to it, copies of detention warrant, notice of

detention, grounds of detention copies of FIR, in total eight 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 dossier has not at all been supplied to

the detenue. Apart from this, if we have a look at the grounds of

detention, it bears reference to four FIRs Viz. FIR No.15/2013 for

offences under Section 148, 149, 332, 427 RPC of P/S Nigeen, FIR

No.01/2018 for offences under Section 13 ULA(P) Act, 147, 148, 336,

153 RPC of P/S Trehgam, FIR No.99/2019 for offences under Section

147, 332, 336 IPC of P/S Nigeen and FIR No.03/2020 for offences under

Section 147, 148, 149, 336, 323, 307 IPC of P/S Nigeen. It was incumbent

upon respondents to furnish not only the copies of these FIRs but also the

statements of witnesses recorded under Section 161/164 of the Cr. P. C

during investigation of these FIRs as well as the other material on the

basis of which petitioner's involvement in these FIRs is shown,

particularly when the petitioner is not nominated in these FIRs. 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 a

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 detention order is based, is supplied to the

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

material renders 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 other ground projected by the learned counsel for the petitioner

is that the detenue was already implicated in FIR Nos.15/2013, 01/2018,

99/2019 and FIR No.03/2020, and there were no compelling reasons

for the Detaining Authority to pass the impugned detention order and that

the Detaining Authority has not spelt out the compelling reasons for

detaining the detenue under preventive detention.

10) It is trite that the preventive detention orders can be passed even

when a person is in police custody or involved in a criminal case but for

doing so, compelling reasons are to be recorded. The Detaining Authority

is bound to record the compelling reasons as to why the detenue could not

be deterred from indulging in subversive activities by resorting to normal

law and in the absence of these reasons, the order of detention becomes

unsustainable in law. I am supported in my aforesaid view by the

judgment of the Supreme Court in the case of Surya Prakash Sharma v.

State of U. P. and others, 1994 SCC (Cri) 1691.

11) It is also settled position of law that a person involved in a criminal

case can be detained under the provisions of preventive detention laws

provided there are compelling circumstances for doing so otherwise the

order of detention becomes unsustainable. I am supported in my aforesaid

view by the judgment of the Supreme Court in the case of T. P. Moideen

Koya vs. Government of Kerala and ors." 2004 (8) SCC 106:

12) Adverting to the facts of the instant case, the detention record

shows that the petitioner was implicated in FIR Nos.15/2013, 01/2018,

99/2019 and FIR No.03/2020. There was no material on record, excepting

the allegations made in the aforenoted FIRs, before the Detaining

Authority which would have compelled it to pass the impugned detention

order against the petitioner who was already booked for commission of a

substantive offence. When it is so, the Detaining Authority was bound to

record the compelling reasons as to why the detenue could not be deterred

from indulging in subversive activities by resorting to normal law. There

are no such reasons or material available on record. The impugned order

of detention of the petitioner is, therefore, unsustainable in law.

13) For the afore-stated reasons, the petition is allowed and the

impugned order of 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.

14) The record, as produced, be returned to the learned counsel for

the respondents.

(Sanjay Dhar) Judge Srinagar 21.05.2022 "Bhat Altaf, PS"

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