Mohd Irfan Th. Mohd Sadiq vs Union Territory Of J&K & Anr
2023 Latest Caselaw 904 j&K

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

                                  WP(Crl.) No.96/2022

Mohd Irfan Th. Mohd Sadiq                          ...PETITIONER(S)
       Through: - Mr. Mohd Amir Awan, Advocate.

Vs.

UNION TERRITORY OF J&K & ANR.                     ...RESPONDENT(S)
       Through: -     Mr. Sumit Bhatia G.A.


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


                                   JUDGMENT

1) By the instant petition, quashment of order No.07/PSA of 2022

dated 28.11.2022, issued by District Magistrate, Udhampur (for brevity

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

Irfan son of Ghulam Haider resident of Kadwah Tehsil Basantgarh

District Udhampur (for short "detenu") has been taken into custody in

order to prevent him from acting in any manner prejudicial to the

maintenance of public order and lodged in Central Jail Kotbhalwal,

Jammu.

2) The impugned order has been assailed by the detenu, inter alia,

on the following grounds:

(i) That the detenu was not informed about his right to make a representation against the impugned order of detention before the Detaining Authority;

(ii) That the material supplied to the detenu was not legible and, as such, he was prevented from making an effective representation against the impugned order of detention;

(iii) That there has been non application of mind on the part of the Detaining Authority, inasmuch as, in the grounds of

detention, it has been mentioned that the detenu was convicted in FIR No. 3/2007 of Police Station, Basantgarh, whereas, he has been acquitted in the said FIR;

(iv) That the grounds of detention appear to be a xerox copy of the dossier which shows non application of mind on part of the Detaining Authority; and,

(v) That the detenu has been detained on the basis of stale incidents.

3 Upon being put to notice, the respondents appeared

through their counsel and filed their reply affidavit, wherein they have

disputed the averments made in the petition and insisted that the

activities of the detenu are highly prejudicial to the maintenance of

public order. It is pleaded that the detention order and grounds of

detention along with the material relied upon by the detaining authority

were supplied to the detenu and the same were read over and explained

to him. It is contended that the grounds urged by the detenu are legally

misconceived, factually untenable and without any merit. That the

detenu was informed that he can make a representation to the

government as well as to the detaining authority against his detention.

It is further claimed in the reply affidavit that all the statutory and

constitutional requirements have been fulfilled and complied with by

the detaining authority and that the order has been issued validly and

legally. In order to support their contentions, the respondents have

produced the record of detention.

4 I have heard learned counsel for the parties and perused

the record of the case.

5 So far as the first ground urged by learned counsel for the

detenu is concerned, the same appears to be without any substance. In

the notice of detention dated 28.11.2022, it has been made clear to the

detenu that he can make representation against the detention order

before Detaining Authority or the before the Government. It appears

that, due to some typographical error, word 'by' instead of word

'before' has been typed out in the last line of the aforesaid said notice.

Merely because of this typographical error, it cannot be stated that

detenu was not informed about his right to make a representation before

the Detaining Authority, when the language of the said notice clearly

indicates, otherwise. Apart from this, as per the execution report which

has been filed along with the counter affidavit, the executing official

has informed the detenu that he can make a representation to the

Government as well as to the Detaining Authority. Thus, it cannot be

stated that the petitioner was not informed about his right to make a

representation before the Detaining Authority.

6 The second ground urged by the detenu is that the legible

copies of the material have not been supplied to him. In para (5.16) of

the petition, it has been submitted by the detenu that the impugned

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

not legible. The documents annexed by the detenu with the petition,

which includes the impugned order of detention as also the grounds of

detention, are clearly eligible to naked eye which means that the detenu

was in possession of legible copies of the aforesaid documents. The

respondents, in their counter affidavit, have clearly stated in para (6)

that copies of FIRs and other documents on the basis of which the

detenu has been detained, were properly supplied to him at the time of

execution of detention warrant and a copy of the execution report has

been placed on record which shows that the detenue has been supplied

not only the copies of detention order, grounds of detention and police

dossier, but also copies of FIRs, statements of witnesses and other

relevant documents running into 54 leaves. The said execution report

bears the signatures of the detenu and it is nowhere indicated in the said

report that copies of documents supplied to the petitioner were not

legible. It has been contended by learned counsel for the detenu that the

respondents should have given a list of documents along with the

documents in order to establish that all the relevant documents were

supplied to him. The argument of learned counsel appears to be without

substance for the reason that in the execution report the particulars of

the the documents supplied to the detenu have been clearly indicated.

7 The third ground urged by the detenu is that in the grounds

of detention, the Detaining Authority has mentioned that the detenu

was convicted in FIR No. 3/2007, but, in fact, he was acquitted in the

said FIR in terms of the judgment dated 26.09.2020 passed by the

learned Additional Sessions Judge, Udhampur. It is correct that the

detenu has been acquitted in the aforesaid FIR by the appellate Court,

but, prior to that, he was convicted by the trial Court. The Detaining

Authority has, therefore, rightly mentioned in the grounds of detention

that the detenu was convicted in the aforesaid FIR by the Judicial

Magistrate First Class (Sub Judge), Ramnagar, the trial Court. Thus, it

cannot be stated that the Detaining Authority has not applied its mind

while recording the aforesaid facts in the grounds of detention.

8 It has been contended by learned counsel for the detenu

that the language of the grounds of detention and the police dossier

shows that both are similar in nature which exhibits non application of

mind on the part of the Detaining Authority. A perusal of the grounds

of detention and police dossier reveals that there may be similarities in

the facts mentioned in the two documents, but, in the grounds of

detention, the Detaining Authority has, after narrating the facts

mentioned in the police dossier, drawn satisfaction that that the detenu

has become a threat to the public order. The language of the two

documents is not similar, but the same is quite distinct. The argument

of learned counsel for the detenu in this regard is without any

substance. From a perusal of the grounds of detention, it is clear that

the Detaining Authority has applied its mind to the material available

before it and thereafter drawn its satisfaction with regard to the

necessity of subjecting the detenu to preventive detention. The same

cannot be a subject matter of review by this Court in exercise of its writ

jurisdiction. The contention of learned counsel for the detenu is,

therefore, without any merit.

9 Lastly, it has been contended by learned counsel for the

detenu that the impugned order of detention is based upon stale

incidents relating to the years 2005 and 2007 having no proximate link

with the detention order. In this regard, it is to be noted that, in the

grounds of detention, a reference has been made to FIR No. 14/2005

and FIR No. 03/2007 of Police Station, Basantgarh. Reference to these

FIRs has been made by the Detaining Authority only to show the past

conduct of the detenu. Besides these FIRs, the grounds of detention

also bear a reference to Daily Diary reports dated 01.10.2022 and

06.10.2022. The grounds of detention further make a reference to the

proceedings initiated before the Executive Magistrate First Class,

Basantgarh under Section 107 of Cr,PC. All these events are recent in

nature and have proximate link with the detention of the detenu. Thus,

it cannot be stated that the detenu has been detained on the basis of

stale incidents. The ground urged by the learned counsel for the detenu

in this regard is without any merit.

3) Viewed thus, there is no ground to interfere in the

impugned order of detention. The petition lacks merit and is dismissed,

as such.

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

respondents.

(Sanjay Dhar) Judge

Jammu 10 .05.2023 "Sanjeev, PS"

                Whether the order is speaking:     Yes/No
                Whether the order is reportable:   Yes/No