Reserved On: 26.07.2023 vs Union Territory Of J&K & Anr
2023 Latest Caselaw 908 j&K/2

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                             WP(Crl) No. 797/2022

                                              Reserved on: 26.07.2023
                                              Pronounced on: 08.08.2023
Peerzada Raqif Maqdoomi

                                                    ...Petitioner(s)

           Through: Mr. N.A.Ronga, Advocate.
                                   Vs.
Union Territory of J&K & Anr.
                                                        ...Respondent(s)

           Through: Mr.Mohsin Qadri,Sr.AAG with
                    Mr. Taha Khalil, Advocate.
CORAM: HON'BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE
                                    JUDGMENT

1. The petitioner, in terms of the detention order No.

DMS/PSA/156/2022 dated 25.11.2022 (for short 'impugned order'),

has been detained in the interest of security of the State by

respondent No.2 -District Magistrate Srinagar (for short 'detaining

authority') in exercise of powers conferred on him under the

provisions of Section 8 of the J&K Public Safety Act, 1978.

2. The said detention order has been challenged through the medium of

present petition, allegedly being in breach of the provisions of

Article 22(5) of the Constitution of India. The petitioner has pleaded

in the petition that the allegations/grounds of detention are vague

and mere assertions of the detaining authority and no prudent man

can make an effective representation against these allegations; that

the allegations whose mention is made in the grounds of detention

have no nexus with the detenue and have been fabricated by the

police in order to justify its illegal action of detaining the detenue;

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that the detaining authority has not prepared the grounds of detention

by itself whileas, relied the impugned detention order upon dossier

only; that the detaining authority has not furnished the material and

other connected documents, relied upon, to the detenue to enable

him to make an effective representation. It is further pleaded that the

detenue has also not been informed that within what time-frame he

can make representation against his detention, which clearly shows

violation of the right of the detenue guaranteed in terms of the

Article 22(5) of the Constitution of India.

3. Respondents in their reply affidavit have stated that the grounds of

detention are precise, proximate, pertinent and relevant. There is no

vagueness or staleness in the grounds coupled with definite

indications as to the impact thereof, which has been precisely stated

in the grounds of detention. Further it is contended that the grounds

of detention give complete account of the activities of the detenue

which on the face of it are highly prejudicial for maintenance of

security of the State, as such, there was no option left but to order

detention of the detenue under Public Safety Act.

4. Learned counsel for the detenue contended that the allegations made

in the grounds of detention are vague, non-existent and no prudent

man can make an effective and meaningful representation against

such allegations and passing of detention on such grounds is

unjustified and unreasonable. All the allegations levelled against the

detenue are far from reality and that the detenue is not involved in

any unlawful activity, so as to justify his preventive detention.

5. Learned counsel for the respondents, ex-adverso, submits that the

record reveals that there is no vagueness in the grounds of detention.

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The procedural safeguards prescribed under the provisions of Public

Safety Act and the rights guaranteed to the detenue under the

Constitution have strictly been followed in the instant case. The

detenue has been furnished all the material, as was required, and was

also made aware of his right to make representation to the detaining

authority against his detention. He further argued that the pleas of

the grounds of detention being vague, non-existent, non-relevant, not

proximate or invalid, shall not invalidate the detention order as

statutorily provided in Section 10-A of the J&K PSA, in terms

whereof petitioner has been detained. He finally submits that the

impugned detention order, having been passed perfectly in

consonance with law, grounds of detention explained /

communicated to the detenue, as is disclosed from his receipt of the

material, all safeguards are complied with and the subjective

satisfaction of detaining authority, cannot be gone into, to

substantiate its own opinion by the Court. It was prayed to uphold

the impugned detention order.

6. Heard and considered.

7. Grounds of detention reveal that the ideology of the detenue is very

dangerous and detrimental for the security of U.T of J&K and if not

stopped by way of preventive detention, the detenue will surely

plague the minds of youth. It further reveals that an information

through reliable sources was received to the effect that propagandist

material was being uploaded and circulated through media in

Kashmir on a website URL https//kashmirfight.wordpress.com. The

posts uploaded on the said URL are prejudicial to the integrity,

sovereignty and maintenance of peace and tranquillity, as the Page |4

handlers of the said URL are propagating secessionist and terror

related ideology. The website is being run as a propaganda tool

against the lawful actions of Government with the aim to disrupt

peace. In the past specific as well as general targets like people

getting domicile certificates, Kashmiri Pandits, non-local labourers,

have been provided to the terrorists. Its first article was titled "the

youth taking arms to fight the oppression". In this article, it talked

about Manan Wani and justified taking up the path of violence.

8. On perusal of the record it reveals that the detenue has not been

furnished all the documents pursuant to the order impugned in terms

of which he was taken into custody. He has not been provided copy

of the communication of the sponsoring agency referred to in the

impugned order which is stated to have been received from the said

agency, on which the detaining authority has stemmed its subjective

satisfaction. In case the detaining authority intends to rely on the

stand, as is reflected in the records, that the copies of the documents

were furnished to the detenue, then it was mandatory upon the said

authority to place on record the affidavit of the person who has furnished

the documents to the detenue. In this regard it may be apt to quote the

relevant observation made in the case "State Legal Aid Committee,

J&K Vs. State of J&K & others (AIR 2005 SC 1270)":-

"Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been Page |5

stated that the contents of the warrants and grounds of detention were served, read over and explained to the detainee and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act."

9. The Hon'ble Apex Court in the judgment rendered in the case

'Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR

1999 SC 3051)', has held 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."

10. It needs no emphasis that the detenue cannot be expected to make a

meaningful exercise of his constitutional and statutory rights

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. If the detenue is not supplied the material on which

detention order is based, the detenue cannot be in a position to make

an effective and meaningful representation against his detention.

11. It is also a fact that time frame within which representation was

required to be filed has not been conveyed to the detenue. This too Page |6

has to be treated as a breach of right of the detenue under Section 13

of Public Safety Act and Article 22 of the Constitution of India.

Allahabad High Court has rendered the judgment in the case

'Jitendra Vs. District Magistrate (2004 CriLJ 2967) in this regard

and has observed that:

"...There is another reason as to why in our judgment the impugned detention order would be vitiated. Since the detenue's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government."

12. There are no specific allegations on these counts or the involvement

of the detenue, shown in the commission of offences in a case

registered vide FIR No. 82/2020 at Police Station Kothibagh, with

no details as to his trial or its outcome. This too is a stale ground to

base the detention of the detenue in the month of November 2022, of

an incident in the year 2020, after a period of more than two years.

The afore-stated grounds of detention, as such, are general

allegations against the detenue, with no specific instances/incidents.

The impugned detention order based on such vague and stale

grounds is not sustainable, for the reason that the detaining authority

before passing the order has not applied its mind to draw subjective

satisfaction to order detention of the detenue by curtailing his liberty

which is a valuable and cherishable right guaranteed under Article

21 of the Constitution of India. In this regard reliance can be placed

on the judgments of Supreme Court in the cases (i) Jahangirkhan

Fazal Khan Pathan Vs. Police Commissioner Ahmadabad (1989) 3 Page |7

SCC 590 and, (ii) Abdul Razak Nanekhan Pathan Vs. Police

Commissioner Ahmadabad AIR 1989 SC 2265.

13.The detenue, who is stated to be a Law student, as discussed hereinabove, was ordered to be detained vide impugned detention order on vague and general grounds. The detenue in absence of specific grounds was not able to make an effective and meaningful representation, either to the detaining authority or to the Government of J&K within statutory period. Therefore, the detenue has been denied the legal, statutory and constitutional safeguards against his detention, rendering his detention unconstitutional.

14. On the touchstone of the law laid down above and the rival submissions, the order of detention, impugned in the instant petition, is vitiated and does not sustain on the aforesaid grounds. In the afore-stated backdrop, this petition is allowed. Order of detention No. DMS/PSA/156/2022 dated 25.11.2022 passed by District Magistrate Srinagar, as such, is, quashed. The detenue namely Peerzada Raqif Maqdoomi S/O Peerzada Parvaiz Ahmad R/O Fazal Haq Colony Batpora Hazratbal Srinagar, is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).

15. Detention record is directed to be returned back to the learned

counsel for the respondents.

16. Petition disposed of, as above.

(M. A. CHOWDHARY) JUDGE Srinagar 08.08.2023 Muzammil. Q

Whether the order is reportable: Yes / No