Arshid Ahmad Mir vs Union Territory Of J&K & Anr
2023 Latest Caselaw 577 j&K/2

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

                                                Reserved on: 19.04.2023
                                              Pronounced on: 09.05.2023

                          WP(Crl.) No.264/2022

ARSHID AHMAD MIR                                   ...PETITIONER(S)
         Through: - Mr. Wajid Haseeb, Advocate.

Vs.

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


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


                                  JUDGMENT

1) By the instant petition, quashment of order No.07/DMP/PSA/22

dated 07.04.2022, issued by District Magistrate, Pulwama (for brevity

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

Ahmad Mir son of Ab. Rashid Mir resident of Parigam Tehsil

Pulwama, (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 statutory safeguards have not been complied

with in the instant case. It has been further urged that 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 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), dossier of detention

(Nil), copies of FIR, statements of witnesses and other relevant

documents (Nil leaves), (total 04 leaves). If we have a look at the

grounds of detention, it bears reference to FIR No.19/2022. 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 therein is shown. Even the dossier of detention has not

been furnished 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) Viewed thus, 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/No
                   Whether the order is reportable:   Yes/No