Umer Hamid Sheikh vs Ut Of J&K & Another
2023 Latest Caselaw 889 j&K/2

                                                            (Serial No. 79)
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                              Pronounced on:04.08.2023
                                            WP (Crl) No.248/2021

UMER HAMID SHEIKH                                    ...Petitioner(s)

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

UT OF J&K & ANOTHER                                ...Respondent(s)

               Through: - Mr. Taha Khaleel, Assisting Counsel vice
                          Mr. Mohsin Qadri, Sr. AAG.

CORAM: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                JUDGMENT

1) The petitioner has challenged order No. DMS/PSA/09/2021 dated 22.02.2021, issued by District Magistrate, Srinagar-respondent No.2 herein, in terms whereof, Shri Umer Hamid Sheikh (hereinafter referred to as the detenue), has been placed under preventive custody and lodged in Central Jail, Srinagar. The order was passed as to prevent the petitioner from acting in a manner prejudicial to the maintenance of security of the State.

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. Further that the grounds of detention are vague and ambiguous which constrained the petitioner from making an effective representation. The procedural safeguards have also not been complied with in the instant case as whole of the material, basis of the impugned detention order, has not been supplied to the petitioner.

3) The respondents appeared through their counsel and filed their reply affidavit. The activities of the detenue are highly prejudicial to the security of the State is ground taken for detaining the petitioner. 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 also read over and explained to him. It is further claimed in the affidavit that all the statutory requirements and constitutional requirements have been fulfilled and complied with by the detaining authority and that the order is valid and legal.

4) The respondents have also produced the photo copy of the detention record.

5) Heard learned counsel for the parties and perused the detention record.

6) Learned counsel for the parties have reiterated, during their course of arguments, the grounds mentioned in the pleadings.

7) A perusal of the detention record reveals that the petitioner has been given five leaves comprising grounds of detention (one leaf), notice (one leaf), grounds of detention (one leaf) and copy of FIR (two leaves). Signatures of the petitioner have been obtained while executing warrant of detention on 03.11.2021. The grounds of detention bears reference to two FIRs viz. FIR No.109/2019 and FIR No.02/2020 for offences under Section 307 IPC and ¾ Exp. Substances Act of P/S Nigeen. The respondents were necessarily required to furnish copies of these FIRs, the statements of witnesses recorded under Section 161/164 of the Cr.P.C during investigation of aforesaid FIRs as well as the other material collected during investigation of the said FIRs. The copy of the police dossier and copies of the statements of witnesses recorded in the two FIRs have been furnished to the detenue are not made out from the record meaning thereby that the material relied upon by the detaining

authority has not been furnished to the detenue. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority has not been supplied to him is having force. The petitioner has been deprived of vital documents necessary for making a representation before the Advisory Board.

8) In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (AIR 1999 SC 3051), the Supreme Court has 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 detenue 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 to the detenue 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."

9) The constitutional right guaranteed under Article 22(5) of the Constitution of India gets infringed for afore-stated deficiency on the part of the detaining authority. The failure on the part of detaining

authority to supply the material renders the detention order illegal and unsustainable in law.

10) Learned counsel for the petitioner has argued that the detention order has been passed on the basis of the dossier provided by the Senior Superintendent of Police, Srinagar. The detention order has been passed after one year of making available the dossier with the respondent No.2 and further that the detention order has been executed after about nine months which shows that there was no plausible reason with the respondent No.2 to pass the detention order.

11) The court is in agreement with the aforesaid submission made on behalf of the petitioner. There has to be proximate link between the prejudicial activities and the purpose of detention. The undue

delay between the two events only affirms that the detention order has been passed for the mere sake of passing of it and is not based upon threat perception as mentioned in the dossier. The respondent No. 2 should have been prompt enough to pass the detention order after the dossier was received from the police department which was the reason for passing the detention order impugned in the petition but failed to do so. No reason whatsoever has come to fore either as to why it took about nine months to execute the detention order by the authorities. The detention order was passed on 22.02.2021 whereas the same was executed on 03.11.2021 as per record.

12) The court in this regard can safely rely upon the judgment passed by the Hon'ble Supreme Court in Cr. Appeal No. 1708 of 2022 decided on 30.09.2022 titled "Sushanta Kumar Banik Vs. State of Tripura & Ors." reported in 2022 Live Law (SC) 813. It has been observed in the judgment:

"...11. We are persuaded to allow this appeal on the following two grounds:-

(i) Delay in passing the order of detention from the date of proposal thereby snapping the "live and proximate link" between the prejudicial activities and the purpose of detention & failure on the part of the detaining authority in explaining such delay in any manner.... and further held:

....In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventing action and turn the detention order as a dead letter and frustrate the entire proceedings."

13) The impugned order of detention cannot sustain on this ground also.

14) In view of what has been discussed above, the Court is of the considered opinion that the detention order passed against the petitioner and impugned in the present petition is bad in law for

aforesaid reasons and requires to be quashed. Accordingly, the petition is allowed and the detention order impugned in the petition is quashed. The detenue is directed to be released from the detention forthwith provided he is not required in connection with any other case.

(PUNEET GUPTA) JUDGE SRINAGAR :

04.08.2023 Pawan Chopra

Whether the order is speaking : Yes Whether the order is reportable: Yes