Mohammad Rafiq Najar vs Union Territory Of J&K And Another
2023 Latest Caselaw 1336 j&K/2

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                                                               Sr. No.4
                                                               Regular List
     IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                       LPA No.53/2022 in
                     [WP (Crl) No.169/2021]

   Mohammad Rafiq Najar                             ...Appellant(s)/Petitioner(s)

   Through: Mr. M. Ashraf Wani, Advocate
                                       Vs.
   Union Territory of J&K and another                          ...Respondent(s)

   Through: Mr. Alla-ud-din Ganai, AAG

   CORAM:
   HON'BLE THE CHIEF JUSTICE
   HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                             O R D E R (ORAL)

17-10-2023 [N.KOTISWAR SINGH-CJ]

01. Heard Mr. M. Ashraf Wani, learned counsel for the appellant-petitioner

as also Mr. Alla-ud-din Ganai, learned AAG, appearing on behalf of

respondents.

02. The present appeal has been preferred by the detenue namely Mohd.

Rafiq Najar, against the judgment and order dated 31.03.2022 passed by

the learned Single Judge in WP (Crl) No.169/2021 dismissing the

challenge to the detention order No.36/DMA/PSA/DET/2021 dated

17.10.2021 issued by the respondent No.2-District Magistrate, Anantnag

under Section (8) of the J&K Public Safety Act (for short "Detaining

Authority").

03. The said detention order was executed on 25.10.2021. The petitioner had

raised a number of grounds in challenging the said order of detention.

The learned Single Judge considered the same, however, did not find any

merit and accordingly, dismissed the petition.

LPA No.53/2022 in [WP (Crl) NO.169/2021]

04. Perusal of the impugned order passed by the learned Single Judge would

show that the petitioner had contended that the grounds of detention are

vague, inasmuch as, the same are lacking in material particulars, as

regards the identity of militants, the petitioner was alleged to have been

rendering support and shelter to them and the learned Single Judge made

an observation in this regard by referring to the grounds of detention

particularly para 3 thereof, that there is an allegation that the petitioner

was providing food and logistic support to the militants of banned

organization JeM especially Mufti Altaf of Nethipora Dooru and that he

was also assisting in transportation of weapons. The learned Single Judge

accordingly held that it cannot be said that the grounds of detention are

vague.

05. The learned Single Judge further considered the other ground which was

urged by the petitioner that he had not been provided with the entire

materials that had been relied upon by the detaining authority while

framing the grounds of detention and on the basis whereof, the order of

detention was passed. As regards the said contention, the learned Single

Judge on perusal of the record produced held that the material forming

the basis of the impugned order had been provided and accordingly, the

learned Single Judge held that the said contention is devoid of merit and

accordingly dismissed the writ petition.

06. Learned counsel for the appellant-petitioner herein has raised similar

grounds before us which may be summed up as:-

a. That the grounds of detention are vague.

b. Because of the vagueness of grounds, the detenue could not file

effective representation before the detaining authority.

LPA No.53/2022 in [WP (Crl) NO.169/2021]

c. That he was not provided with all the materials on the basis of

which the detaining authority formed his subjective satisfaction for

detaining him.

07. Accordingly, it has been submitted by the learned counsel for the

appellant-petitioner that the detention order deserves to be set aside.

08. Mr. Alla-ud-din Ganai, learned AAG, appearing on behalf of

respondents, on the other hand, has submitted that it cannot be said that

the grounds of detention are vague, inasmuch as, it has specifically been

mentioned as to whom the appellant-petitioner had provided logistic

support. Further, the representation of the petitioner had been duly

considered by the detaining authority and it was found to be devoid of

merit; and thirdly, it has been submitted that all the relevant documents

were provided to the petitioner-appellant herein and as such, it cannot be

said that there is non-application of mind on the part of detaining

authority.

09. We have heard the learned counsel for the parties and perused the record

produced before us by Mr. Alla-ud-din Ganai, learned AAG representing

the respondents.

10. As regards the first ground raised by the appellant-petitioner that the

grounds of detention are vague, we are, however, not able to agree with

the said contention, inasmuch as, in para 3 of the grounds of detention

there is a specific mention of the person who was alleged to be member

of the banned organization JeM one Mufti Altaf of Nethipora Dooru

whom the petitioner was alleged to have provided food and logistic

support. We are of the view that even if several grounds are taken these

are severable and one of the grounds is sufficient to make the basis for

LPA No.53/2022 in [WP (Crl) NO.169/2021]

subjective satisfaction of detention, the Court may not interfere with

such subjective satisfaction.

11. Secondly, coming to the next issue that the petitioner was not given

opportunity to make an effective representation before the detaining

authority, we have gone through the record. It appears that the competent

authority had considered the representation submitted by the petitioner

and as such, the requirement contemplated under Article 22 (5) of the

Constitution, the right of detenue of submitting a representation, has

been taken care of.

12. However, there is another ground raised by the detenue that entire

material has not been furnished to the detenue as the detaining authority

claims to have given. We have examined the execution report, which is

made available before us, which clearly mentions the detention order (01

leaf), notice of detention (1 leaf), grounds of detention, (02 leaves),

dossier of detention, (Nil), Copies of FIRs and statement of witnesses

and other related documents, (Nil), thus in total 4 (four) leaves were

handed over to the detenue at Central Jail, Kotbilwal Jammu on

20.10.2021 against proper receipt. The said execution report would show

that neither the copy of dossier nor copies of FIRs or statement of

witnesses as mentioned in the detention order dated 17.10.2021 under

order No.36/DMA/PSA/DET/2021 issued by the respondent No.2-

District Magistrate, Anantnag, had been given to the detenue.

Accordingly, we are satisfied that the detenue had not been furnished

with all the documents which were the basis for forming the subjective

satisfaction by the detaining authority to detain the detenue. Para 7 of the

grounds of detention specifically mentions that in view of factual

LPA No.53/2022 in [WP (Crl) NO.169/2021]

position brought out in the preceding paras of the grounds of detention,

and in absence of any adequate statutory provision, the detaining

authority was of the considered opinion, based on the contents of dossier,

FIRs and other supporting documents enclosed with the dossier, that in

order to prevent the detenue from indulging in similar activities it has

become imperative to detain him under the provision of J&K Public

Safety Act, 1978. Thus, it is clear from the aforesaid grounds of

detention order that the detaining authority had relied on the contents of

the dossier, FIRs and other supporting documents as also mentioned in

the detention order dated 17.10.2021. However, the perusal of the

execution order does not indicate that such copies were furnished to the

detenue. Reliance is placed upon the decision of Apex Court in Thahira

Haris v. Government of Karnataka, (2009) 11 SCC 438, 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 earliest opportunity to make effective and meaningful representation against his detention."

13. Under the circumstances, we are in agreement with the learned counsel

for the appellant-petitioner that the 11 documents which formed the basis

for grounds of detention had not been furnished, as such, the detention

order would suffer from the vice of non-application of mind.

14. Under the circumstances, we are not able to agree with the findings and

observations made by the learned Single Judge, in para 9 of the

LPA No.53/2022 in [WP (Crl) NO.169/2021]

impugned judgment that all the relevant documents were furnished to the

detenue by the detaining authority.

15. Accordingly, we are satisfied that the appellant-petitioner has been able

to make out his case for quashing the detention order. Accordingly the

appeal is allowed and the judgment dated 31.03.2022 is set aside and as a

consequence thereof, the impugned detention order dated 17.10.2021

passed by respondent No.2 is also quashed. The detenue be set at liberty

unless wanted in connection with any other case.

      (MOKSHA KHAJURIA KAZMI)                    (N. KOTISWAR SINGH)
                   JUDGE                              CHIEF JUSTICE

SRINAGAR
17-10-2023
Shameem H.



        Whether the Judgment is reportable:                 Yes/No.




LPA No.53/2022 in
[WP (Crl) NO.169/2021]