Jammu & Kashmir High Court

Shabir Ahmed Chohan Th. Alif Din vs Ut Of J&K And Others on 31 March, 2023

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                              Reserved on:       16.03.2023
                                              Pronounced on:     31.03.2023

                                              WP(Crl) No. 48/2022
                                              CM No. 6007/2022
Shabir Ahmed Chohan Th. Alif Din                   .....Appellant(s)/Petitioner(s)
Chohan
                       Through: Mr. Irfaan Khan, Advocate and
q
                                Mr. Nauman Yaseen Kanth, Advocate.
                vs
UT of J&K and others                                         ..... Respondent(s)
                       Through: Ms. Monika Kohli, Sr. AAG
                                Mr. Pawan Dev Singh, Dy. AG.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1. The petitioner who has been detained under Section 8 of Jammu and

Kashmir Public Safety Act, 1978 (for short „PSA‟) on account of his

activities considered to be prejudicial for maintenance of public order,

has impugned the order of detention bearing No. 21/PSA of 2022

dated 03.10.2022 issued by the respondent No. 2, through the medium

of this writ petition filed through his father.

2. The case projected by the petitioner is that he was arrested on

10.09.2022 and after retaining him in illegal custody for a period of 28

days, the order dated 03.10.2022 was issued by the respondent No. 2

for detaining the petitioner under section 8 of the PSA. The order of

detention dated 03.10.2022 has been impugned by the petitioner on the

grounds inter alia that the documents relied upon by the detaining

authority i.e. respondent No. 2 while issuing the order of detention has

not been furnished to the petitioner and further that as the petitioner

CM No. 6007/2022

was having no criminal antecedents, the respondent No. 2 could not

have issued any order of detention. It is also stated that respondent No.

2 has not recorded its subjective satisfaction as to how the public order

would be affected in case of non detention of the petitioner under

preventive custody. It is also stated that the petitioner is not conversant

with English language, as such it was imperative for the respondents to

furnish translated script of the order of detention to the petitioner.

3. Reply stands filed by the respondents, wherein it has been stated that

none of the legal, constitutional, statutory or even fundamental rights

of the petitioner has been violated by the respondents while issuing the

order of detention. It is stated that Superintendent of Police, Ramban

vide his communication dated 29.09.2022 submitted a dossier of

illegal activities of the petitioner, recommending the detention of the

petitioner under Jammu and Kashmir Public Safety Act, as the

petitioner was in close contact with one Pak based terrorist, namely,

Qasim on his mobile and was providing him the information about

sensitive matters of UT of J&K, particularly Tehsil Khari. As the

activities of the petitioner were harmful and highly prejudicial for the

peace, prosperity, tranquillity, integrity and security of UT of J&K,

particularly of Tehsil Khari, the detention order was issued by

respondent No. 2 for detaining the petitioner. The order of detention

has been approved by the Government vide its order dated 03.11.2022.

4. Rejoinder affidavit was also filed by the petitioner.

5. Mr. Irfaan Khan, learned counsel for the petitioner submitted that the

petitioner was not supplied with the documents relied upon by the

CM No. 6007/2022

detaining authority and, as such, it has deprived the petitioner of his

right to make an effective representation against the order of his

detention.

6. Ms. Monika Kohli, learned senior AAG appearing on behalf of the

respondents submitted that because the activities of the petitioner were

prejudicial to the maintenance of public order in UT of J&K and more

particularly in Tehsil Khari, the petitioner was ordered to be detained.

She also produced the record of detention.

7. Heard and perused the record.

8. Before appreciating the rival contentions of the parties, it would be

appropriate to note that the procedural requirements are the only

safeguards available to the detenue since the Court cannot go behind

the subjective satisfaction of the detaining authority. The procedural

requirements are, therefore, to be strictly complied with if any value is

to be attached to the liberty of the subject and the constitutional rights

guaranteed to him in that regard.

9. The main argument of the learned counsel for the petitioner is that the

petitioner has not been supplied with the documents relied upon by the

detaining authority while issuing the order of detention. A perusal of

grounds of detention reveals that the order of detention was issued on

the basis of dossier submitted by respondent No. 3 to respondent No.

2. In the grounds of detention, the detaining authority has also

mentioned about the xerox copies of the Daily Diary extract of Police

Post, Khari. In the record produced by the respondents more

particularly the execution report, this court finds that only four leaves

CM No. 6007/2022

have been handed over to the petitioner on 06.10.2022 when the order

of detention was executed by Inspector Mushtaq Ahmad. Those four

leaves handed over to the petitioner include one leaf of detention

order, one leaf of notice of detention and two leaves of grounds of

detention. Neither the dossier nor the daily diary extracts as relied

upon by the detaining authority have been furnished to the petitioner.

10. The non-supply of the material relied upon by the detaining authority

to the petitioner has deprived him to make a proper and meaningful

exercise of his constitutional right of making effective representation

under Article 22(5) of the Constitution of India and Section 13 of the

JK Public Safety Act, 1978. It is only after the petitioner is supplied all

the material that he can make an effective representation to the

Detaining Authority and also to the Government and if the same is not

done, he is deprived of his valuable constitutional right. Failure on the

part of the respondent No. 2 to supply material relied upon by him,

while passing the detention order renders it illegal. Reliance is placed

upon the decision of Apex Court in Thahira Haris v. Govt. of

Karnataka reported in (2009) 11 SCC 438 and the relevant para is

reproduced as under:

"30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earlier opportunity to make effective and meaningful representation against his detention."