Aitullah Hussain Wani vs Union Territory Of J&K And Others
2023 Latest Caselaw 358 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                    Reserved on 08.02.2023
                                                   Pronounced on 23.02.2023

                                                    WP(Crl) No. 73/2022


Aitullah Hussain Wani                           .....Appellant(s)/Petitioner(s)

Q
                       Through: Mr. S. S. Ahmed, Advocate
                  Vs
Union Territory of J&K and others                         ..... Respondent(s)
                       Through: Ms. Monika Kohli, Sr. AAG


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

                               JUDGMENT

1. The petitioner has challenged order No. 28/PSA of 2022 dated

18.10.2022 issued by the District Magistrate, Ramban (hereinafter to be

referred as the Detaining Authority). In terms of the aforesaid order,

Aitullah Hussain Wani S/o Assadullah Wani, R/o. Gund Adalkote,

Tehsil Banihal, District Ramban (hereinafter to be referred as the

detenue) has been placed under preventive custody 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 order mechanically without application of mind inasmuch

as the petitioner has already been acquitted in the case FIR reference

whereof is made in the grounds of detention. It has been further

contended that the statutory procedural safeguards have not been

complied with in the instant case as whole of the material that formed

bases of the grounds of detention and the order of detention has not

been handed over to the detenue/petitioner. It has further been

contended that though the petitioner made a representation against the

impugned order of detention, yet the same was not considered by the

respondents.

3. The respondents in their counter affidavit have disputed the averments

made in the petition and have insisted that activities of the petitioner are

highly prejudicial to the maintenance of public order. It is pleaded that

the detention order and the grounds of detention were supplied to the

detenue and same were read over and explained to him. It has been

further contended that there cannot be a judicial review of the subjective

satisfaction accorded by the Detaining Authority in the grounds of

detention. It is further contended that the grounds urged by the

petitioner are factually untenable and legally misconceived. The

respondents have produced the detention record in order to buttress the

contentions raised in the counter affidavit.

4. I have heard learned counsel for the parties and perused the record.

5. Although a number of grounds have been raised by the learned counsel

for the petitioner, yet during the course of arguments, the main thrust

was on the contention that the petitioner has not been provided the

whole of the material, which has formed the basis of the grounds of

detention.

6. While going through the detention record, as produced, the ground

projected by the learned counsel for the petitioner appears to be well

founded. A perusal of the detention record produced by the learned

counsel for the respondents reveals that certain material has been

received by the petitioner on 20.10.2022. Report of the Executing

Officer in this regard forms part of the detention record. A perusal

thereof reveals that it bears the signatures of the petitioner. According

to this document, the petitioner has received the detention order (one

leaf), notice of detention (one leaf), grounds of detention(three leaves),

dossier of detention (nil), copies of the FIRs and statement of witnesses

and other related documents (nil), total five leaves.

7. It is clear from the execution report which forms part of the detention

record that copy of dossier of the detention has not been provided to the

petitioner at all. The grounds of detention are based upon the dossier of

the Superintendent of Police, Ramban. In the grounds of detention, it is

noted that the petitioner is in contact with certain elements in Pakistan

through suspicious apps and other mobile contacts regarding which a

number of DD reports have been entered in the Daily Diary of the

Police Station. It goes on to state that these DD reports are enclosed for

ready reference. In the execution report, it is nowhere mentioned that

copies of these DD reports have been furnished to the petitioner. The

sole basis for detaining the petitioner is the DD reports of the police and

the police dossier, which, in the instant case, seems to have not been

supplied to the petitioner.

8. Besides the above, the grounds of detention bear reference to FIR No.

187/2011 of Police Station, Banihal. As per the execution report, neither

any FIR nor any documents, relating to the aforesaid FIR, have been

furnished to the petitioner.

9. Learned counsel for the respondents has vehemently argued that the fact

that the petitioner has admitted that he has made a representation before

the respondents, shows that he was in possession of all the material. At

the very outset, it is to be noted that the respondents have not admitted

the receipt of the said representation and even if, they have received the

said representation, the same has not been considered by the

respondents. In the eventuality of non consideration of the

representation of the petitioner by the respondents, the impugned order

would otherwise become unsustainable in law.

10. Even otherwise, a perusal of the copy of the representation annexed

with the petition shows that the petitioner has specifically averred in the

said representation that he has not been served with the dossier

submitted by the Senior Superintendent of Police, Ramban to the

District Magistrate, Ramban. Thus, the stand of the petitioner right from

the inception is that he has not been provided the whole material which

has formed the basis of grounds of detention. 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 the 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.

11. It needs no emphasis that the detenue cannot be expected to make an

effective and purposeful representation, which is a constitutional right

guaranteed under Article 22(5) of the Constitution of India, unless and

until, the material on the basis of which his detention has been ordered,

is supplied to the detenue. The failure on the part of the Detaining

Authority to supply the material renders the detention order illegal and

unsustainable. While holding so, I am fortified with the judgment of the

Supreme Court in Sophia Ghulam Mohd. Bham v State of

Maharashtra and others, AIR 1999 SC 3051.

12. Viewed in the above context, the impugned order of detention passed

against the petitioner is held to be unsustainable in law and the same

deserves to be quashed. Accordingly, the petition is allowed and the

impugned order of detention No. 28/PSA of 2022 dated 18.10.2022 is

quashed. The petitioner is directed to be released from the preventive

custody forthwith provided he is not required in connection with any

other case.

13. Record of detention be returned to the learned counsel for the

respondents.

(SANJAY DHAR) JUDGE

Jammu 23.02.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No