Faizan Aijaz Mir vs Ut Of J&K & Ors
2023 Latest Caselaw 971 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.110/2022

FAIZAN AIJAZ MIR                                      ...PETITIONER(S)

             Through: - Mr. R. A. Bhat, Advocate.
Vs.

UT OF J&K & ORS.                                     ...RESPONDENT(S)

             Through: - Mr. Tahaj Khalil, Assisting Counsel, vice
                        Mr. Mohsin S. Qadiri, Sr. AAG.


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


                                  JUDGMENT

1) The petitioner has challenged order of detention bearing No.

DMS/PSA/141/2021 dated 28.02.2022, issued by District Magistrate,

Srinagar - respondent No.2 herein. In terms of the aforesaid order,

Faizan Aijaz Mir (hereinafter referred to as the detenue), has been placed

under preventive so as to prevent him from acting in any manner

prejudicial to 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. It has

been contended that the grounds of detention are vague on the basis of

which no prudent man can make a representation against such

allegations. It has been further contended that the procedural safeguards

have not been complied with in the instant case, inasmuch as whole of

the material which formed basis of the impugned detention order has not

been supplied to the petitioner.

3) The respondents have resisted the petition by filing a reply

affidavit thereto. In their reply affidavit, the respondents have submitted

that the activities of detenue are highly prejudicial to the security of the

State. 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 the same were read over and explained

to him. It is contended that the detenue was informed that he can make a

representation to the government as well as to the detaining authority

against his detention. It is further claimed in the reply affidavit that all

the statutory requirements and constitutional guarantees have been

adhered to and complied with by the detaining authority and that the

order has been issued validly and legally. In order to buttress their stand,

the respondents have produced the detention record.

4) 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 was not

furnished the whole of the material to enable him to make an effective

representation against his detention.

5) So far as the ground of challenge is concerned, a perusal of the

material on record reveals that the petitioner has received only grounds

of detention consisting of three leave. That means, copies of PSA

warrant, notice of detention and order of detention have not been

provided to the petitioner. Besides this, if we have a look at the grounds

of detention, it bears reference to three FIRs i.e., FIR Nos. 54/2017 of

P/S Sadder, 133/2021 of P/S Saddar and 01/2022 of P/S Chanpora. It

was incumbent upon respondents to furnish not only the copies of the

FIRs but also the statements of witnesses recorded during investigation

of the said FIRs and other material on the basis of which the petitioner's

involvement in these FIRs is shown. Even the copy of the dossier of

detention has not been supplied to the petitioner.

6) 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.

7) 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) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953

SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer

Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and,

Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009

SC 2184).

8) For the foregoing reasons, the petition is allowed and the

impugned detention order is quashed. The respondents are directed to

release the petitioner from the preventive custody forthwith, unless, of

course, he is required in connection with any other case.

9) The record be returned to learned counsel for the respondents.

(Sanjay Dhar) Judge Srinagar 18.08.2022 "Bhat Altaf, PS"

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