Manzoor Ahmad Ganie vs Union Territory Of J&K & Anr
2023 Latest Caselaw 963 j&K/2

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

                                                  Reserved on: 31.07.2023
                                                  Pronounced on:18.08.2023

                          WP(Crl.) No.601/2022

MANZOOR AHMAD GANIE                                ...PETITIONER(S)

       Through: - Mr. Parvaiz Amin Wani, Advocate.

Vs.

UNION TERRITORY OF J&K & ANR.                      ...RESPONDENT(S)
       Through: -     Mr. Mubashir Majid Malik, Dy. AG, with
                      Mr. M. Younis, Advocate.


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

                                  JUDGMENT

1) By the instant petition, quashment of order

No.60/DMK/PSA/2022 dated 25.06.2022, issued by District Magistrate,

Kulgam (for brevity "detaining authority") is sought. In terms of the

aforesaid order, Manzoor Ahmad Ganie son of Haji Abdul Gani Ganie

resident of Khargund Chowgam, Kulgam, (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. It has been further contended 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 and that the representation submitted by the petitioner against

his detention has not been considered. It has also contended that there

has been non-application of mind on the part of the detaining authority

while passing the detention order.

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

material relied upon by the detaining authority while passing the

impugned detention order was furnished to the detenue and the same was

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

are legally misconceived, factually untenable and without any merit and

that 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 following grounds:

(I) 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.

(II) That although a representation was submitted against the detention by the detenue through his son before the respondents yet the same was not considered thereby rendering the detention order unsustainable in law.

6) The first 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 (02 leaves), dossier of detention (Nil), copies of

FIR, statements of witnesses and other relevant documents (Nil), (total

04 leaves). If we have a look at the grounds of detention, it bears

reference to FIR No.213/2018 of P/S Qazigund. It was incumbent upon

respondents to furnish not only the copy of the FIR but also the

statements of witnesses recorded during investigation of the said FIR and

other material on the basis of which petitioner's involvement therein FIR

is shown. Even the copy of the dossier of detention has not been supplied

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. 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) The next ground projected by the petitioner is that he had

submitted a representation against his detention but the same has not

been considered by the respondents.

10) It has been contended by the petitioner that he had made a

representation against his detention through his son Raqeeb Ahmad

Ganie, which, seemingly, has been received by the office of District

Magistrate, Kulgam, on 21.07.2022. The copy of the representation bears

the seal and endorsement of the office of the District Magistrate

concerned. The petitioner has specifically pleaded in ground (x) of his

petition that he made a representation before the detaining authority.

These assertions have gone unrebutted as there is no denial to the same

by the respondents in the counter affidavit. The detention record does not

suggest that the said representation has been either placed before the

Advisory Board or considered by the Board. The failure of the

respondents to place the representation submitted by the detenue before

the Advisory Board and its consequent non-consideration indisputably

amounts to violation of constitutional safeguards provided the provisions

of Article 22(5) of the Constitution. A reference in this behalf to the

judgment of the Apex Court in the case of Rahmatullah Vs. State of

Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the

aforesaid judgment, the Court observed as under:-

"4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without

any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution."

11) From the aforesaid legal position on the subject, it is clear that

non-consideration or an unreasonably belated consideration of the

representation tantamount to non-compliance of Article 22(5) of the

Constitution, which in turn renders the detention unsustainable in law.

12) 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.

13) The detention record be returned to learned counsel for the

respondents

(Sanjay Dhar) Judge

SRINAGAR 18.08.2023 "Bhat Altaf, PS"

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