Jammu & Kashmir High Court - Srinagar Bench
Waheed Ahmad Khanday vs Union Territory Of J&K & Ors on 2 February, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 30.12.2022
Pronounced on: 02.02.2023
WP(Crl.) No.279/2021
WAHEED AHMAD KHANDAY ...PETITIONER(S)
Through: - Mr. M. A. Makroo, Advocate
Vs.
UNION TERRITORY OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Impugned in this petition is order No.12-DMK/PSA of 2021 dated
19.10.2021, issued by District Magistrate, Kupwara (for brevity
"Detaining Authority") whereby Shri Waheed Ahmad Khanday son of
Ab. Rehman Khanday resident of Yaroo Tehsil Langate District
Kupwara (for short "thedetenue") has been placed under preventive
detention, in order to prevent him from acting in any manner prejudicial
to the security of the State.
2) The petitioner has contended that the Detaining Authority has
passed the impugned detention order mechanically without application
of mind, inasmuch as the grounds of detention are mere reproduction of
the dossier. It has been further contended that the Statutory safeguards
have not been complied with in the instant case. It has been also urged
that the allegations made against the detenue in the grounds of detention
are vague and that whole of the material which formed basis of the order
of detention has not been provided to the detenue. It has been contended
that the petitioner has not been informed as to before which authority he
had to make a representation.
3) The respondents, in their counter affidavit, have disputed the
averments made in the petition and stated that they have followed the
provisions of J&K Public Safety Act. It is contended that the detenue has
been detained only after following due procedure; that the grounds of
detention were read over to the detenue; that there has been proper
application of mind while passing the impugned order of detention and
that the detenue has been provided all the material which has been relied
upon by the detaining authority while passing the detention order. The
respondents have placed reliance on the judgment of the Supreme Court
in Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents
have produced the detention record to lend support to the stand taken in
the counter affidavit.
4) I have heard learned counsel for parties and perused the detention
record.
5) Learned counsel for the petitioner, while throwing challenge to the
impugned order, projected various grounds but the main grounds that
have prevailed during the course of arguments are:
(I) That the grounds of detention are verbatim copy of the
dossier, which shows that the detaining authority has not
applied its mind while framing the grounds of detention;
(II) That the detenue has been disabled from making an
effective representation against his detention as whole of
the material which has been relied upon by the detaining
authority while making the impugned detention order has
not been supplied to him;
6) While going through the detention records, the first ground
projected by the learned counsel for the petitioner gets fortified from the
material on record. The grounds of detention appear to be replica of the
dossier with interplay of some words here and there, which exhibits non-
application of mind on the part of detaining authority. In the process, the
deriving of subjective satisfaction by the detaining authority has become
a causality. While formulating the grounds of detention, the Detaining
Authority has to apply its own mind. It cannot simply reiterate whatever
is written in the police dossier. In my aforesaid view, I am supported by
the judgment of the Supreme Court in the case of Jai Singh and ors vs.
State of J&K (AIR 1985 SC 764).
7) The grounds of detention and the dossier if in similar language, go
on to show that there has been non-application of mind on the part of the
Detaining Authority. The similarity of the contents of grounds of
detention and police dossier in the instant case clearly exhibits
mechanical functioning of the detaining authority, thereby making the
impugned order of detention unsustainable in law.
8) The second ground projected by the petitioner is that the detenue
has been disabled from making an effective representation against the
order of detention as the material, which formed basis of the impugned
order of detention, has not been furnished to him.
9) The detention record, as produced by learned counsel for the
respondents, contains a copy of the Execution Report dated 30.10.2021,
perusal whereof reveals that ten leaves comprising copy of detention
order warrant (01 leaf), Notice of detention (01 leaf), grounds of
detention (02 leaves), dossier of detention (05 leaves), copies of FIR,
statements of witnesses and other relevant documents (06 leaves), in
total 15, leaves been provided to the detenue and in token of receipt
thereof, his signatures have been obtained on the said Execution Report.
10) It is interesting to note that no FIR has been shown to have been
registered against the petitioner, at least the detention record depicts so.
When this is the position, then wherefrom 06 leaves comprising copies
of FIR and statements of witnesses have been provided to the petitioner,
is not forthcoming from the detention record. This clearly exhibits
casual and mechanical approach of the respondents, which casts doubts
about the veracity of the execution report/receipt stated to have been
signed by the petitioner.
11) Another strange position that emerges from the perusal of
detention record is that the dossier consists of only 04 leaves but the
execution record shows that 05 leaves have provided to the petitioner.
The grounds of detention also bear reference to proceedings under
Section 107 and 151 of the Cr.P.C but it seems that the documents
relating to these proceedings have also not been supplied to the
petitioner. Thus, contention of the petitioner that whole of the material
relied upon by the detaining authority, while formulating 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, as a result whereof his case has been considered by the Advisory
Board in the absence of his representation, as is clear from the detention
record. 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.
12) It is a settled law that non-supply of the requisite/relevant material
would amount to violation of right of detenue under Article 22 (5) of the
Constitution of India and its deprivation renders the detention order
unsustainable in law. In my aforesaid view, I am fortified by the
judgments of the Supreme Court rendered in the cases of Sophia Gulam
Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051),
Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR
2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar
Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs.
State of Gujarat and others, (1982) 3 SCC 440.
13) The cumulative effect of the aforesaid discussion leads to the only
conclusion that in the instant case, the respondents have not adhered to
the legal and Constitutional safeguards while passing the impugned
detention order against the petitioner. The impugned order of detention
is, therefore, unsustainable in law. Accordingly, the same 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.
14) The detention record, as produced, be returned to the learned
counsel for the respondents.
(Sanjay Dhar)
Judge
Srinagar
02.02.2023
"BhatAltaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
