Shahid Majieed Dar vs Ut Of J&K & Anr
2022 Latest Caselaw 716 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKHAT
                       SRINAGAR

                                                   Reserved on: 10.05.2022
                                                   Pronounced on:25.05.2022

                           WP(Crl.) No.162/2021


SHAHID MAJIEED DAR                                  ...PETITIONER(S)

             Through: - Mr. Wajid Haseeb, Advocate.
Vs.

UT OF J&K & ANR.                                     ...RESPONDENT(S)

             Through: - Mr. Illyas Nazir Laway, GA.


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


                                   JUDGMENT

1) The petitioner has questioned in this writ petition the legality and

validity of the order No.DMS/PSA/58/2021 dated 18.10.2021, issued by

respondent No.2-District Magistrate, Srinagar, under Section (8) of the

J&K Public Safety Act (for brevity "Detaining Authority") whereby Shri

Shahid Majeed Dar son of Abdul Majeed Dar resident of Bunpora

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

preventive detention and directed to be lodged in Central Jail, Srinagar.

2) The petitioner has contended that the Detaining Authority has passed

the impugned detention order mechanically without application of mind,

inasmuch as the Constitutional and Statutory procedural safeguards have

not been complied with in the instant case. It has been further urged that

the material which formed basis of the grounds of detention and the

consequent order of detention have not been provided to the detenue. It has

also been averred that the grounds of detention are vague and that the same

are mere assertions of the detaining authority on which no prudent man can

make an effective representation against the order of detention.

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 has been averred in the

reply that the detaining authority has followed the provisions of J&K

Public Safety Act and that the detenue has been detained only after

following due procedure. It is pleaded that the detention order and grounds

of detention along with relevant material were handed over to the detenue

and same were read over and explained to him and that the grounds urged

by the petitioner are legally misconceived, factually untenable and without

any merit. In support of their stand, the respondents have also produced the

requisite detention record.

4) I have heard learned counsel for parties and I have also gone through

the detention record.

5) Learned counsel for the petitioner, while seeking quashment of the

impugned order, projected a number of grounds but the main thrust of

challenge to the impugned order of detention is that whole of the material

forming basis of the grounds of detention has not been supplied to the

detenue, which prevented him from making an effective representation

against his detention.

6) So far as the ground of challenge urged by the petitioner 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 18.11.2021. 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, copies of PSA

warrant, notice and grounds of detention, 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 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 and

statutory right guaranteed under Article 22(5) of the Constitution of India,

unless and until the material, on which detention 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) For the foregoing reasons, the petition is allowed and the impugned

order of detention is set aside. The respondents are directed to set free the

detenue from the preventive custody forthwith provided he is not required

in connection with any other case.

10) The detention record 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