Majid Rasheed Dar vs Union Territory Of J&K & Ors
2022 Latest Caselaw 1777 j&K/2

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

                                                  Reserved on:   24.08.2022
                                                  Pronounced on: 17.10.2022


                           WP(Crl) No.04/2022

MAJID RASHEED DAR                                     ...PETITIONER(S)

             Through: - Mr. Gulzar Ahmad Sopori, Advocate.

Vs.

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

             Through: - Mr. Ilyas Nazir Laway, GA.


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

                                   JUDGMENT

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

No.21/DMB/PSA of 2021 dated 16.12.2021, issued by District

Magistrate, Bandipora (for brevity "detaining authority") has been

challenged. In terms of the aforesaid order, Majid Rasheed Dar son of Ab.

Rasheed Dar resident of Papchan Bandipora (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 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 maintenance of public order. 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 ground but his main thrust during the

course of arguments was on the ground that the detenue was not furnished

with whole of the material to enable him to make 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 19.12.2021. 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. The grounds of detention also bear reference to

proceedings under Section 107 of Cr.P.C but it seems documents relating

to these proceedings have also not been supplied to the petitioner. 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 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) 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.

10) The detention record be returned to the learned counsel for the

respondents.

(Sanjay Dhar) Judge

SRINAGAR 17.10.2022 "Bhat Altaf, PS"

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