Aqib Ahmad Dhobi vs Union Territory Of J&K & Anr
2023 Latest Caselaw 864 j&K/2

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

                                                   Reserved on: 17.07.2023
                                                   Pronounced on:02.08.2023


                           WP(Crl.) No.318/2021

AQIB AHMAD DHOBI                                        ...PETITIONER(S)

       Through: - Mr. Wajid Haseeb, Advocate.

Vs.

UNION TERRITORY OF J&K & anr.                           ...RESPONDENT(S)
       Through: -     Mr. Raees-ud-din Ganai, Dy. AG.


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


                                   JUDGMENT

1) By the instant petition, quashment of order No.61/DMP/PSA/21

dated 16.12.2021, issued by District Magistrate, Pulwama (for brevity

"detaining authority") is sought. In terms of the aforesaid order, Aqib

Ahmad Dhobi son of Ghulam Mohammad Dhobi resident of Tral-i-Payeen

Tehsil Tral District Pulwama, (for short "detenu") has been placed under

preventive detention 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

and that the procedural safeguards have not been complied with in the

instant case. It has been further urged that whole of the material which

formed basis of the grounds of detention and the consequent order of

detention has not been provided to the detenue. It has also been contended

that the grounds of detention are vague, non-existent and stale.

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 is pleaded that the

whole of the material was handed over to the detenue and the same has

been read over and explained to him; that the grounds urged by the

petitioner are legally misconceived, factually untenable and without any

merit and the impugned detention order has been passed strictly in

accordance with law occupying the field. In support of their stand taken

in the counter affidavit, the respondents have also produced the detention

record.

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

record.

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

impugned order, projected various grounds but his main thrust during the

course of arguments was on the ground that the detenue's right of making

an effective representation against his detention has been violated as

whole of the material, on the basis of which the grounds of detention have

been formulated, has not been supplied to him.

6) The ground projected by the learned counsel for the petitioner that

the detenue has been disabled from making an effective representation

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

grounds of detention and the consequent order of detention, has not been

furnished to him, appears to have substance. A perusal of the detention

record reveals that the petitioner has been provided copies of detention

order (01 leaf), notice of detention (01 leaf), grounds of detention (03),

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

relevant documents (Nil), (total 05 leaves). If we have a look at the

grounds of detention, it bears reference to as many as four FIRs Viz. FIR

Nos.57/2013 of P/S Tral, 288/2013 of P/S Parimpora, 383/2018 of P/S

Parimpora and 51/2021 of P/S Tral. It was incumbent upon respondents

to furnish not only the copies of these FIRs but also the statements of

witnesses recorded during investigation of the said FIRs and other

material on the basis of which petitioner's involvement therein is shown.

Even the dossier of detention has not been furnished to the petitioner.

7) 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 in law.

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 learned counsel for the

respondents

(Sanjay Dhar) Judge

SRINAGAR 02.08.2023 "Bhat Altaf, PS"

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