Hilal Ahmad Peer vs Union Territory Of J&K & Ors
2022 Latest Caselaw 706 j&K/2

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

                                                Reserved on: 11.05.2022
                                                Pronounced on: 25.05.2022

                         WP(Crl.) No.270/2021

HILAL AHMAD PEER                                 ...PETITIONER(S)

            Through: - Mr. Arshid Andrabi, Advocate
Vs.

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

            Through: - Mr. Ilyas Laway, GA.

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

                                 JUDGMENT

1) Challenge in this petition is thrown to the order

No.23/DMB/PSA/2021 dated 21.10.2021, issued by District Magistrate,

Baramulla (for brevity "Detaining Authority") whereby Shri Hilal

Ahmad Peer son of Mohd Yousuf Peer resident of Kachwa Muqam,

Tehsil Wagoora District Baramulla (for short " the detenu") has been

placed under preventive detention and lodged in Central Jail,

Kotebhulwal Jammu.

2) The 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 mere reproduction of

the dossier. 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 the allegations made against

the detenue in the grounds of detention are vague and that the material

which formed basis of the order of detention has not been provided to

the detenue. It has also been contended that the petitioner has not been

informed as to before which authority he had to make a representation.

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 while passing the impugned order of detention and

that the detenue has been provided all the material which has been relied

upon by the detaining authority while passing the detention order. The

respondents have placed reliance on the judgment of the Supreme Court

in Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents

have produced the detention record to lend support to the stand taken in

the counter affidavit.

4) I have heard learned counsel for parties and perused the detention

record.

5) Learned counsel for the petitioner, while throwing challenge to the

impugned order, projected various grounds but the main grounds that

have prevailed during the course of arguments are:

(I) That the grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while framing the grounds of detention;

(II) That the detenue has been disabled from making an effective representation against his detention as whole of

the material which has been relied upon by the detaining authority while making the impugned detention order has not been supplied to him;

6) In rebuttal, the learned counsel for the respondents has made an

attempt to justify the passing of the order impugned by contending that

the detenue is a habitual criminal, inasmuch he is involved in various

criminal acts and, as such, the Detaining Authority was well within its

jurisdiction to pass the impugned order of detention as there was every

likelihood of the detenue indulging in similar activities. It has been

further contended that all the documents relied upon by the Detaining

Authority were, provided to the detenue and in token of having received

the same, the detenue has signed the receipt. It is also urged that the

contents of the documents were read over and explained to the detenue

in the language understood by him.

7) While going through the detention records, the first ground

projected by the learned counsel for the petitioner gets fortified from the

material on record. The grounds of detention appears to be replica of the

dossier with interplay of some words here and there, which exhibits non-

application of mind on the part of detaining authority. In the process, the

deriving of subjective satisfaction by the detaining authority has become

causality. While formulating the grounds of detention, the Detaining

Authority has to apply its own mind. It cannot simply reiterate whatever

is written in the police dossier. In my aforesaid view, I am supported by

the judgment of the Supreme Court in the case of Jai Singh and ors vs.

State of J&K (AIR 1985 SC 764).

8) The grounds of detention and the dossier, if in similar language,

go on to show that there has been non-application of mind on the part of

the Detaining Authority. The similarity of contents of grounds of

detention and police dossier in the instant case clearly exhibits

mechanical functioning of the detaining authority, thereby making the

impugned order of detention unsustainable in law.

9) The second ground projected by the petitioner is that the detenue

has been disabled from making an effective representation against the

order of detention as the material, which formed basis of the impugned

order of detention, has not been furnished to him.

10) Detention record, as produced by learned counsel for the

respondents, contains a copy of the Execution Report dated 26.10.2021,

perusal whereof reveals that 04 leaves comprising copy of detention

order (01 leaf), Notice of detention (01 leaf), and grounds of detention

(02 leaves) have been provided to the detenue and in token of receipt

thereof, his signatures have been obtained on the said Execution Report.

The receipt does not show anything to suggest that any other

document/material including the police dossier has been furnished to the

detenue. This strengthens the contention of the petitioner that whole of

the material on which the grounds of detention are based, has not been

supplied to the petitioner. 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.

11) It is a settled law that non-supply of the requisite/relevant material

would amount to violation of right of detenue under Article 22 (5) of the

Constitution of India and its deprivation renders the detention order

unsustainable in law. In my aforesaid view, I am fortified by the

judgments of the Supreme Court rendered in the cases of Sophia Gulam

Mohd. Bham v. State of Maharashtra &ors (AIR 1999 SC 3051),

Thahira Haris 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 cumulative effect of the aforesaid discussion leads to the only

conclusion that in the instant case, the respondents have not adhered to

the legal and Constitutional safeguards while passing the impugned

detention order against the petitioner. The impugned order of detention

is, therefore, unsustainable in law. Accordingly, the same 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.

13) The detention record, as produced, be returned to the learned

counsel for the respondents.

(Sanjay Dhar) Judge Srinagar 25.05.2022 "Bhat Altaf, PS"

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