Wp(Crl) No. 460/2022 vs Ut Of Jammu & Kashmir & Anr
2023 Latest Caselaw 949 j&K/2

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                        WP(Crl) No. 460/2022
                                           Reserved on: 02.08.2023
                                           Pronounced on: 16.08.2023
Jahangir Ahmad Ganie

                                                 ...Petitioner(s)

            Through: Mr. Mudasir Bin Hassan, Advocate.

                              Vs.
UT of Jammu & Kashmir & Anr.
                                                  ...Respondent(s)

            Through: Mr. Rais ud Din Ganai, Dy.AG with
                     Ms. Nadiya Abdullah, Assisting counsel.


CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                            JUDGMENT

1. In exercise of powers under Section 8 of the Jammu & Kashmir Public

Safety Act, 1978 (for short 'the Act'), respondent No.2 - District

Magistrate Pulwama (for short 'detaining authority') has passed the

Detention Order No. 64/DMP/PSA/22 dated 29.06.2022 (for short

'impugned order'), in terms whereof the petitioner Jahangir Ahmad

Ganie (for short 'the detenue') was ordered to be detained under the

Act.

2. The detention of the detenue has been challenged inter alia on the

grounds that the allegations leveled in the grounds of detention are

vague, non-existent and no prudent man can make a representation

against such allegations and passing of detention on such grounds is

unjustified and unreasonable. It is the contention of the detenue that in

June 2022 he was arrested by the police without any reason and

justification and subsequently detained under the provisions of Public Page |2

Safety Act. Furthermore, it is contended that the relevant material has

not been furnished to the detenue and whatever material was furnished

to him, it was not possible to make a purposeful representation, thus, the

right of the detenue under Article 22 of the Constitution stands violated.

3. It is contended that the detenue submitted a representation to the

Detaining authority as also to the Government for his release as the

detenue is a law abiding citizen and has not committed any act, which

warrants his detention under the provision of PSA. Neither

representation filed by the detenue was considered nor was he produced

before the Advisory Board for providing him an opportunity of being

heard, so that he could prove his innocence Copy of the representation

is annexed with the writ petition. It is submitted that because of non-

consideration of his representation, the detention order slapped upon

him is liable to be quashed. .

4. Respondents have filed their reply affidavit, wherein it is stated that the

order of detention was passed by the detaining authority after being

satisfied on the basis of the material available including the dossier

submitted by Senior Superintendent of Police Pulwama, that it was

necessary with a view to prevent the detenue from acting in any manner

prejudicial to the maintenance of security of the State, to place the

detenue under preventive detention. It is submitted that the detention of

the detenue has been ordered strictly in accordance with the provisions

of the Act and the procedural safeguards prescribed under the

provisions of the Act and the rights guaranteed to the detenue under the

Constitution have strictly been followed in the instant case. It is further

submitted that the grounds of detention transpire the activities of the

detenue which, on the face of them, are highly prejudicial to the security Page |3

of the State and, therefore, there was no option left to the detaining

authority but to order detention of the detenue under the Act.

5. With regard to the allegation of non-consideration of the detenue's

representation, in the reply affidavit, it is submitted that the brother of

the detenue filed representation against the order of detention, which

after perusal was rejected on 15.07.2022.

6. Heard learned counsel for the parties perused the material available on

record and considered.

7. On going through the grounds of detention, during perusal of detention

record, it comes to fore that the detenue was an active conduit of banned

terrorist organization (LeT), aim and object of which is to secede the

UT of J&K from the Union of India and annex it with Pakistan; that the

detenue was a fundamentalist in nature therefore, working as Over

Ground Worker for banned organization LeT; that the detenue was

providing logistic support to the terrorists of the said organization like

food, shelter, clothes and are also facilitating their movements from one

place to another and providing information about movement of the

security forces; that it has been recorded in the grounds of detention that

the detenue has strong belief in Islam, therefore, retains sympathy for

militants particularly the terrorists of the banned outfit LeT; that in

order to prevent the detenue from indulging in the activities prejudicial

to the security of the State, was found necessary to detain him under the

provisions of J&K Public Safety Act.

8. Perusal of the detention record further reveals that the detenue has not

been furnished all the documents, relied upon by the detaining authority

for passing the order of detention against the detenue; he has only been

furnished copies of detention order, notice of detention, grounds of Page |4

detention, and dossier. Other related documents have not been furnished

to the detenue. This means that he was not provided with whole of the

material, which based his detention. The failure on the part of the

detaining authority to supply material, renders detention illegal and

unsustainable. In this regard, the Hon'ble Apex Court in the judgment

rendered in the case of "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."

9. It has already been held in various judgments by the Apex Court that in

case the detenue has not been provided all the relevant material on

which the subjective satisfaction is stemmed, same renders the order of

detention bad in law. It can be reasonably inferred that the detenue has

not been in a position to make an effective representation, which is

statutory and constitutional right of said detenue, due to this lapse of

detaining authority and so it renders the impugned order bad.

10. In Smt. Icchu Devi Choraria Vs. Union of India & Ors. (AIR 1980

SC 1983), the Apex Court has observed as :-

"The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade."

"This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of Page |5

the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred."

11. It is also notable that normal law in the instant case had to be assumed

to be sufficient to disable the detenue to indulge in any such activity

which may have been in the estimation of the Detaining authority to be

treated prejudicial to the security of the State.

12. As revealed from the detention record the petitioner has been shown as

over ground worker of terrorist organization alleging that he was

providing logistic support to the terrorists like food, shelter, clothes and

also facilitating their movement from one place to another, besides

providing information about the movement of security forces. However,

without disclosing any specific incidents or activities of the petitioner as

to when, how and where the said logistic support was provided by the

petitioner to the terrorists, therefore, the allegations on which the

detention order has been passed are general and vague. The detaining

authority has also recorded in the grounds of detention that the detenue

being a strong believer in Islam, retains sympathy for militants

particularly the terrorists of the banned outfit LeT.

13. It is astonishing that how the detaining authority has without

application of mind branded the detenue as a sympathizer of the

terrorists of proscribed terrorist organization 'LeT' just on being a

strong believer in Islam. This depicts poor understanding of the

Detaining authority as to how it has dealt with this matter just on the

faith of the person.

14. The detention order based on such vague grounds is not sustainable, for

the reason that the detaining authority before passing the order has not Page |6

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 SCC 590 and, (ii) Abdul Razak Nanekhan

Pathan Vs. Police Commissioner Ahmadabad AIR 1989 SC 2265.

15. In view of the facts of the instant case and the law laid down by the

Hon'ble Apex Court as referred above, the order of detention,

impugned herein, does not sustain and is required to be quashed.

16. Viewed thus, in the context what has been observed, analyzed and

considered in the preceding paras, the instant petition is allowed and

consequently the impugned order of detention bearing No.

64/DMP/PSA/22 dated 29.06.2022, is quashed. Detenue namely

Jahangir Ahmad Ganie S/O Mohammad Abdullah Ganie R/O Gusoo

Pulwama, be released forthwith, if not required in connection with any

other criminal case(s) pending against him.

17. Scanned copy of the record, as produced, be returned back to the

learned counsel for the respondents.

18. Petition is disposed of accordingly.

(M. A. CHOWDHARY) JUDGE Srinagar 16.08.2023 Muzammil. Q

Whether the order is reportable: Yes / No