Zakir Ahmad Wani vs Government Of J&K & Anr
2023 Latest Caselaw 1043 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                   WP(Cr1) No. 304/2022

                                               Pronounced on:28.08.2023

Zakir Ahmad Wani                                           .... Petitioner(s)
                               Through:- Mr. Shabir Ahmad, Advocate,

                         V/s
Government of J&K & anr.                                 .....Respondent(s)

                                Through:- Mr. M. Younis, Assisting
                                          counsel

CORAM:      HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                 JUDGMENT

01. The District Magistrate Kulgam vide Order No.

22/DMK/PSA/2022 dated 09.04.2022 has placed the detenu under detention

under section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 with a

view to prevent him from acting in any manner prejudicial to security,

sovereignty and integrity of the State. The detenu has assailed this order of

detention through his father-Fayaz Ahmad Wani.

02. The order of detention has been assailed by the detenu on the

grounds that; (i) the procedural safeguards under the Constitution of India

and the Public Safety Act have not been provided to him; (ii) all the material

relied upon by the Detaining Authority while passing the order of detention

has not been supported; (iii) the allegations mentioned in the grounds of

detention have no nexus with the detenu and are fake and fabricated; (iv) the

grounds of detention are vague and non-existence on which no prudent man

can make a representation; (v) the detenu was not informed about his right

make a representation against the detention order which is in total violation

of his right guaranteed under Article-22 of the constitution; (vi) the detention

order has been passed without any application of mind; and (vii) the grounds

of detention were never explained to the detenu in the language which he

could have understood.

03. Mr. M. Younis, learned assisting counsel appearing on behalf of

the respondents has filed the counter affidavit as well as produced the

detention record. Learned counsel for the respondents has controverted the

averments made in the petition. It is submitted by him that the activities of

the detenu are highly prejudicial to the security of the State, as such, he was

detained to prevent him from such actions. All the procedural safeguards and

constitutional guarantees were duly complied with by the Detaining

Authority. The grounds of detention, order of detention as well as entire

material relied upon by the Detaining Authority has been provided to the

detenu and he was also informed of his right to make an effective

representation against the order of detention. The grounds urged by the

detenu are misconceived and without any reason.

04. Heard learned counsel for the parties and perused the record also.

05. The first contention raised by the detenu is that all the material

relied upon by the Detaining Authority has not been provided to him. The

detenu has only received the grounds of detention as per the receipt of

grounds of detention but the dossier and other material relied upon by the

Detaining Authority has not been provided to the detenu. Perusal of the

record reveals that as per the execution report, the detenu has not been

supplied with all the material. The receipt of grounds of detention and

relevant records reads as under:-

'Received copies of the detention order (01 leaf), Notice of detention (01 leaf) grounds of detention (02 leaves), Dossier of detention (Nil) Copies of FIR,

Statements of witnesses and other related relevant documents (Nil) (Total 04 Leaves) through Executive officer ............'

06. The detention order dated 09.04.2022 reflects that the same is

based on the dossier placed before the Detaining Authority by the Senior

Superintendent of Police, Kulgam. The detenu was, thus, prevented from

making an effective representation due to non-supply of entire material

relied upon by the Detaining Authority while arriving at a subjective

satisfaction. In order to make an effective representation, the detenu must

know, what weighed with the Detaining Authority while passing the order of

detention and non-supply of the material has hampered him from making an

effective representation.

07. This non-supply of material had prevented the detenu from

making an effective and purposeful representation and failure in supplying

the same has rendered the detention unsustainable in law as held in view of

the law laid down in Sophia Ghulam Mohd. Bham V. State of

Maharashtra and others, reported as AIR 1999 SC 3051, the Apex Court

observed as under:-

"... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language..."

08. This right to make a representation can only be exercised by the

detenu provided all the material relied upon, while passing the order of

detention are provided to be detenu. In order to make an effective

representation, the detenu must know the fact of what weighed in the mind

of the Detaining Authority for passing the impugned order of detention.

Article-22(5) of the Constitution of India provides that when any person is

detained, the Detaining Authority shall, as soon as may be, communicated to

the detenu, the grounds on which the detention order has been made and

shall afford him an earliest opportunity of making an effective representation

against the order of the detention.

09. The next contention raised by the detenu is that the detenu through

his father, immediately after his detention order, filed a representation before

respondent No. 2 on 27.04.2022 and respondent No. 1 on 06.05.2022 but

these representations were not considered by the Detaining Authority till

date. The representation is on record but the same has not been considered

till date.

10. The Hon'ble Apex Court in Sarabjeet Singh Mokha vs. The

District Magistrate, Jabalpur and others., reported as SCC Online SC

1019, has held as under:-

"....Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition."

11. In Kundanbhai Dulabhai Shaikh vs District Magistrate,

Ahmedabad and others", reported as 1996 Cr.L.J. 1981, the Court has

quashed the detention order only on the ground of delay in disposal of the

representation. It was held as under:

"...it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days."

12. There is unexplained delay on the part of the Government in

deciding the representation of the detenu and the fact that all the material

relied upon by the Detaining Authority has not been provided to him, thus,

this has resulted in infraction of the detenu's rights and this also vitiates the

order of detention.

13. Learned counsel for the petitioner submits that the detenu was

already under custody in FIR No.04/2022 registered under Sections 307, 302

IPC, 7/27 Arms Act, 3/4 Explosive Substances Act and 13, 16, 18, 20, 38 of

ULA(P) Act in Police Station Kulgam and there was no compelling reason

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

the Detaining Authority has not given any compelling reason for detaining

the detenu under preventive law.

14. It is well settled that preventive detention order can be passed, if a

person under the police/judicial custody is involved in criminal cases but for

doing so, the compelling reasons are to be recorded as to why the detenu

cannot be prevented from indulging in subversive activities by resorting to

normal law. In the absence of these reasons, the order of detention becomes

unsustainable under law. The Hon'ble Supreme Court has clarified this view

in Surya Prakash Sharma vs. State of U.P. & ors., reported as 1994 SCC

(Cr.) 1691 and Sama Aruna Vs. State of Telengana reported as AIR 2017

SC 2662. The Detaining Authority having failed to give any compelling

reason while passing the order of detention which has become vitiated.

15. In view of the aforesaid reasons, there is no need to advert to other

grounds raised in this petition. This petition is allowed and detention Order

No. 22/DMK/PSA/2022 dated 09.04.2022, passed by the District Magistrate,

Kulgam under which detenu Zakir Ahmad Wani S/o Sh. Fayaz Ahmad Wani

R/o Nillow, Kulgam, is under detention, is quashed. Accordingly, the

respondents are directed to release the detenu from the custody forthwith, if

he is not required in any other case.

01. Detention record be returned to learned counsel for the

respondents by the Registry forthwith.

(Sindhu Sharma) Judge SRINAGAR 28.08.2023 Ram Murti/PS

Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes