Shahid Ahmad Kumar vs Union Territory Of J&K & Anr
2023 Latest Caselaw 575 j&K/2

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

                                                Reserved on: 13.04.2023
                                                Pronounced on: 9.05.2023


                           WP(Crl.) No.269/2022

SHAHID AHMAD KUMAR                                  ...PETITIONER(S)

       Through: - Mr. Wajid Haseeb, Advocate.

Vs.

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


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


                                   JUDGMENT

1) By the instant petition, quashment of order No.DMS/PSA/40/2022

dated 09.04.2022, issued by District Magistrate, Srinagar (for brevity

"detaining authority") is sought. In terms of the aforesaid order, Shahid

Ahmad Kumar son of Fayaz Ahmad Kumar resident of Narbatpora

Zakura, Hazratbal, Srinagar, (for short "detenu") has been placed under

preventive detention and lodged in Central Jail Kotbhalwal, Jammu.

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 further urged

that whole of the material which formed basis of the grounds of

detention and the consequent order of detention has not been provided to

the detenue. It has also been contended that the grounds of detention are

vague, non-existent and stale.

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

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

are highly prejudicial to the security of the State. It is pleaded that the

detention order and grounds of detention were handed over to the

detenue and same were read over and explained to him; that the grounds

urged by the petitioner are legally misconceived, factually untenable and

without any merit and that the impugned detention order has been passed

strictly in accordance with law occupying the field. In support of their

stand taken in the counter affidavit, the respondents have also produced

the detention record.

4) I have heard learned counsel for parties and perused the material

on 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 ground that the detenue's right of

making an effective representation against his detention has been

violated as whole of the material, on the basis of which the grounds of

detention have been formulated, has not been supplied to him.

6) The ground projected by the learned counsel for the petitioner that

the detenue has been disabled from making an effective representation

against the order of detention as whole of the material, which formed

basis of the grounds of detention and the consequent order of detention,

has not been furnished to him, appears to have substance. A perusal of

the detention record reveals that the petitioner has been provided copies

of detention order (01 leaf), notice of detention (01 leaf), grounds of

detention (02 leaves), copy of dossier of detention (Nil), copies of FIR,

statements of witnesses and other relevant documents (01 leaf), (total 05

leaves). If we have a look at the grounds of detention, it bears reference

to FIR No.30/2020. 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 said FIR and other material on the basis of

which petitioner's involvement in these FIRs is shown. All this material

would run in dozens of pages and it is impossible that all this material

would be covered in only one leaf. Even the copy of the dossier of

detention has not been supplied to the petitioner.

7) Thus, the 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.

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 the law of

preventive detention have been observed in breach by the respondents in

this case rendering the impugned order of detention unsustainable in law.

8) 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 in law.

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, Thahira Haris Etc. Etc. V. 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.

9) For what has been discussed above, 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.

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

respondents.

(Sanjay Dhar) Judge

SRINAGAR 09 .05.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:     Yes
                   Whether the order is reportable:   Yes