Jammu & Kashmir High Court - Srinagar Bench

Sameer Ahmad Kundoo vs Ut Of J&K And Another on 8 May, 2023

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


WP (Crl) No. 117/2022
                                             Reserved on : 03.04.2023
                                             Pronounced on: 08.05.2023


Sameer Ahmad Kundoo                                          ...Petitioner(s)


                         Through:     Mr. Wajid Haseeb, Advocate

                                V/s

UT of J&K and another                                      ...Respondent(s)


                         Through: Mr. Sajad Ashraf, GA

CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                               JUDGMENT

01. The detention Order no. DMS/PSA/151/2021 dated 17.03.2022

passed by the District Magistrate, Srinagar, under Section 8(4) of the Jammu

and Kashmir Public Safety Act, 1978 has been assailed in this petition by the

detenue-Sameer Ahmad Kundoo S/o Ghulam Mohi-ud-din Kundoo R/o

Shalbaf Mohalla, Anchar, Srinagar through his brother Adil Ahmad Kundoo.

02. The detenue has challenged the legality and validity of the order on

the grounds that (i) the material forming basis of the grounds of detention

has not been supplied to him, thus, infringed his right to make an effective

representation; (ii) there is more than fifteen days delay in execution of the

order dated 17.03.2022, thus, the detention is vitiated and the delay in

execution of the detention order has deprived the detenue of his right to

make an effective representation to the Detaining Authority, which has

resulted in an infraction of the rights as guaranteed to the detenue. The

detenue was already admitted to bail in FIR Nos. 193/2015, 55/2015,

73/2015 and 9/2016 registered with different Police Stations, and the Detaining Authority, despite having knowledge about the registration of the

cases and bail, has not mentioned compelling reasons in the grounds of

detention while passing the order of detention after six years of bail,

therefore, there was no application of mind while detaining the detenue and

as such, the same is liable to be quashed. (iv) the detenue had moved a

representation, immediately after his detention but the same has not been

considered and this has resulted in infraction of the rights as guaranteed to

the detenue.

03. The respondents have filed their counter affidavit in which it is

submitted by them that the detenue was detained under the provisions of the

Jammu and Kashmir Public Safety Act, 1978 validly by virtue of detention

order dated 17.03.2022 issued by the District Magistrate, Srinagar. Detaining

Authority has fulfilled all the statutory requirements and Constitutional

guarantees as provided to the detenue. The grounds of detention, order of

detention as well as entire material relied upon by the Detaining Authority

have been communicated to the detenue and he was also informed of his

right to make an effective representation against the order of detention. The

case of the detenue was referred to the Advisory Board for its opinion and

the Advisory Board after considering the material placed before it has held

that there is sufficient cause for detaining the detenue, thus, after the opinion,

the Government confirmed the order of detention.

04. Heard learned counsel for the parties and perused the record.

05. A perusal of the detention record reveals that the detenue was detained

in terms of FIR no. 193/2015 u/s 307, 120-B RPC of P/S Safakadal, FIR no.

55/2015 u/s 307, 120-B RPC of P/S Khanyar, FIR no. 73/2015 u/s 307, 120-B

, 7/27 IA Act of P/S Khanyar and FIR no. 09/2016 u/s 7/25 A. Act, 3/4

Explosive Subs. Act of P/S Tarzoo. The detenue was released on bail on 19.03.2016. This aspect was not considered by the Detaining Authority while

passing the order of detention, which has rendered the detention illegal.

06. This aspect was considered by the Hon‟ble Supreme Court in 'Anant

Sakharam Raut vs. State of Maharashtra and another', 1987 AIR SC

137 and it was held that:

"There is absolutely no mention in the order about the fact that the petitioner was an under-trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention."

07. Thus, while passing the order of detention, the Detaining Authority has

not shown any awareness or considered the order of granting bail and this

non-application of mind has vitiated the entire proceedings of detention.

08. The next submission made by learned counsel for the detenu is that

the detenu has not been supplied with all the material relied upon while

passing the order of detention to enable him to make an effective

representation against the impugned order of detention and non-supply of

such material would constitute infraction of valuable right provided under

Article 22(5) of the Constitution of India.

09. Thus, non-supply of the material has resulted in the infraction of the

right to make an effective representation and, as such, detention order is

vitiated and unsustainable in law.

10. In „Farooq Ahmad Sheikh V. State of J&K, 2017(2) SLJ 681', this

court while considering the similar matter has held:

"20. From the perusal of the Execution Report what can be said, in unequivocal terms, is that the detenue, along with the documents in the shape of the copy of detention order and the copy of the grounds of detention and not the copies of the F.I.Rs, was handed over to the jail authorities of the Central Jail, Kot Bhalwal, against proper receipt and these were read over and explained to him. Therefore, it can, irresistibly, be concluded that the copies of the 'First Information Reports (FIRs)' bearing NOs. 85/2016, 88/2016, 116/2016 & 145/2016 and the record of the investigation, made in them, were not made available to the detenue, which is an infraction of law as it has hampered him from making an effective representation as provided under law."

Therefore, unless the detenu is provided all the material and

the reasons for what weighed in the mind of the Detaining Authority for

passing the order of detention, no effective representation could be made

against the detention, as such, the detention order is vitiated.

01. In 'Sophia Ghulam Mohd. Bham V. State of Maharashtra and

others', AIR 1999 SC 3051, the Hon‟ble Apex Court observed as under:-

"... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language....."

11. Perusal of the record reveals that the petitioner has not been

supplied all the material relied upon by the detaining authority while

arriving at its subjective satisfaction while passing the order of detention.

The execution report reflects that the petitioner has only been supplied

copies of detention order, notice of detention and letter addressed to the

detenue but all the other relevant material like FIR, statement of witnesses

etc. relied upon by the detaining authority have not been furnished to him. This has resulted in infraction of constitutional and statutory safeguards as

guaranteed to him under Article 22(5) of the Constitution of India and

Section 13 of the J&K Public Safety Act for making an effective and

purposeful representation.

12. In view of the aforesaid reasons, there is no need to advert to other

grounds raised in this petition.

13. Accordingly, this petition is allowed and the detention order No.

/DMS/PSA/151/2021 dated 17.03.2022 passed by the District Magistrate,

Srinagar, under which detenue-Sameer Ahmad Kundoo S/o Ghulam Mohi-

ud-din Kundoo is under detention, is quashed. The respondents are directed

to release the detenue from the custody forthwith, if he is not required in any

other case.

14. Detention record be returned to learned counsel for the respondents