Mohd Shafi Dar vs Ut Of J&K And Others
2022 Latest Caselaw 1745 j&K/2

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


                                                 Reserved on: 22.08.2022
                                                 Pronounced on:11.10.2022


                          WP(Crl.) No.212/2021


MOHD SHAFI DAR                                           ...Petitioner(s)

            Through: - Mr. S. M. Saleem, Advocate.
Vs.

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

            Through: - Mr. Ilyas Nazir Laway, GA.


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


                                  JUDGMENT

1) Impugned in this petition is to the order No.11/DMB/PSA of 2021

dated 17.10.2021, issued by District Magistrate, Bandipora-respondent

No.2 herein, in terms whereof, Mohd Shafi Dar (hereinafter referred to as

the detenue), has been placed under preventive custody and lodged in

Central Jail, Kotbhalwal Jammu.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application of

mind. It has been further contended that the 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 Page |2 WP(C) No.212/2021

provided to the detenue who is an illiterate person. 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 also perused the material

available on the file as also the detention records 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 ground that has

been argued during the course of arguments is that the detenue was not

furnished whole of the material to enable him to make an effective

representation against his detention.

6) So far as the 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 Page |3 WP(C) No.212/2021

19.10.2021. Report of the Executing Officer in this regard forms part of

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

of the petitioner and according to it, copies of detention order (01 leaf),

notice of detention (01 leaf), grounds of detention (04 leaves), dossier of

detention (Nil), copies of FIR, statements of witnesses and other related

relevant documents (Nil), in total 06 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. Apart from this, if we have a look at the grounds

of detention, it bears reference to four FIRs Viz. FIR Nos.65/2017,

66/2017, 08/2018 and 76/2021 registered with Police Station, Hajin. 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 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 Page |4 WP(C) No.212/2021

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

impugned order of isquashed. The detenue is directed to be released from

the preventive custody forthwith provided he is not required in connection

with any other case.

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

respondents.

(Sanjay Dhar) Judge Srinagar 11.10.2022 "Bhat Altaf, PS"

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