Saliq Parvaiz Bhat vs Union Territory Of J&K & Anr
2023 Latest Caselaw 29 j&K/2

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

                                                        Reserved on: 30.12.2022
                                                     Pronounced on: 02.02.2023

                             WP(Crl) No.73/2022

SALIQ PARVAIZ BHAT                                   ...PETITIONER(S)
                Through: - Mr. B. A Tak, Advocate.

Vs.

UNION TERRITORY OF J&K & ANR. ...RESPONDENT(S)
                Through: - Mr. Bikramdeep Singh, GA.

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

                                    JUDGMENT

1) Through the medium of instant petition, the petitioner has challenged

the legality and veracity of the order No.97/T/MS/PSA/2022 dated

28.01.222, issued by District Magistrate, Shopian. In terms of the aforesaid

order, Shri SaliqParvaiz Bhat S/o Parvaiz Ahmad Bhat R/o Gagren Tehsil &

District Shopian, has been placed under preventive detention in order to

prevent him from acting in any manner prejudicial to the maintenance of

public order.

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 vague, non-existent on 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 has not been

provided to the petitioner. It has been further urged that there has been non-

application of mind on the part of detaining authority while passing the

impugned detention order as the detenue was already admitted to bail in the

FIR, mention whereof has been made in the grounds of detention.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and insisted that the activities of the 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 was

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

are legally misconceived, factually untenable and without any merit. To

substantiate their stand taken in the counter affidavit, the respondents have

produced the detention record.

4) I have heard learned counsel for parties and perused the 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 there has been non-application of mind on the part of the Detaining Authority while passing the impugned order of detention, inasmuch as, it was not alive to the fact that the detenu had been enlarged on bail in the case registered against him as the said fact is not mentioned in the grounds of detention.

(II) That whole of the material forming basis of the grounds of detention has not been furnished to the detenue.

6) The first ground that has been urged by learned counsel for the detenu

is that the impugned order of detention suffers from non-application of mind

on the part of the Detaining Authority, inasmuch as the grounds of detention

do not bear any reference to the fact that the petitioner has been admitted to

bail in the FIR, mention whereof, is made in the grounds of detention. To

support the assertion that the petitioner has been admitted to bail, he has

placed on record copy of the order whereby he has been enlarged on bail in

the FIR, mention whereof is made in the grounds of detention.

7) As per the grounds of detention, the petitioner is involved in FIR

No.296/2021 for offences under Section 148, 149, 336, 307, 353 IPC of P/S

Shopian. In the said FIR, the detenu, it appears, has been granted bail. In the

grounds of detention, there is no mention of grant of bail in favour of the

detenu. This clearly exhibits total non-application of mind on the part of the

Detaining Authority. It appears that the detaining authority has not

meticulously examined the record while passing the order of detention which

renders the same unsustainable in law. In this regard, I am supported by the

judgment of the Supreme Court in the case of Anant Sakharam Raut v.

State of Maharashtra, AIR 1987 SC 137.

8) Next it is urged that whole of the material forming basis of the

grounds of detention has not been supplied to the petitioner which deprived

him from making an effective representation against his detention.

9) A perusal of the detention record produced by learned counsel for the

respondents reveals that the material has been received by the petitioner on

02.02.2022. Report of Executing Officer in this regard forms part of the

detention record, a perusal whereof reveals that it bears the signature of

petitioner and according to it, the petitioner has received copy of detention

warrant (01 leaf), grounds of detention (03 leaves), copy of dossier (Nil) &

other related documents (01 leaf) (total 05 leaves).

10) Nothing has been brought on record to indicate that the copy of the

police dossier has been furnished to the detenue. If we have a look at the

grounds of detention, it bears reference to FIR No.296/2021of P/A Shopian.

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 FIR

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

FIR is shown, but it seems that the same has not been done by the

respondents. It was incumbent on the respondents to provide the detenue the

material on the basis of which petitioner's involvement in the aforesaid FIR

is shown particularly because the petitioner is not nominated in the FIR.

11) 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. Rather the record

produced by the respondents corroborates the fact that whole of the material

relied upon by the detaining authority and transmitted to him by the

concerned sponsoring agency has not been furnished to the detenue.

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 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. 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, ThahiraHaris Etc.

Etc. V. Government of Karnataka &Ors. (AIR 2009 SC 2184).

13) For the foregoing reasons, 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.

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

respondents.

(Sanjay Dhar) Judge SRINAGAR 02.02.2023 "Bhat Altaf, PS"

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