Jammu & Kashmir High Court - Srinagar Bench
Shoaib Maqbool Sheikh vs U T Of J&K & Ors on 9 August, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU &KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 24.07.2024
Pronounced on: 09.08.2024
WP(Crl) No.803/2022
SHOAIB MAQBOOL SHEIKH ...PETITIONER(S)
Through: - Mr. R. A. Bhat, Advocate.
Vs.
U T OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Mubashir Majid Malik, Dy. AG.
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged detention order No.DMS/PSA/90/
2022 dated 30.08.2022, issued by District Magistrate, Srinagar (for
brevity "detaining authority"). In terms of the aforesaid order, Shri
Shoaib Maqbool Sheikh (for short "detenue") has been placed under
preventive detention and lodged in Central Jail, Kotbhalwal, Jammu, in
order to prevent him from indulging in the activities which are
prejudicial to the security of the State.
2) The petitioner has contended that the impugned order has been
issued without application of mind as the allegations mentioned in the
grounds of detention have no nexus with the detenue and that the same
have been fabricated by the police in order to justify its illegal action of
detaining the detenue. It has been contended that the grounds of detention
are vague, non-existent on which no prudent man can make a
representation against such allegations. It has been further contended that
Page |2
the safeguards provided under law have not been complied with in the
instant case, inasmuch as whole of the material which formed basis of
the impugned detention order has not been supplied to the petitioner. It
has been further contended that the representation filed by the detenue
against his detention has not been considered.
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
detenue are highly prejudicial to the security of the State. It is pleaded
that whole of the material relied upon by the detaining authority has been
furnished to the detenue and the same was read over and explained to
him and that the detenue was informed that he can make a representation
to the government as well as to the detaining authority against his
detention. It is further contented in the reply affidavit that all statutory
requirements and constitutional guarantees have been fulfilled and
complied with by the detaining authority and that the impugned order
has been issued validly and legally. The respondents have produced the
detention record to lend support to the stand taken in the counter
affidavit.
4) I have heard learned counsel for parties and perused the 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 following grounds:
(I) That there has been delay in execution of the detention
order, inasmuch as the impugned order of detention has
Page |3
been passed on 30.08.2022 but the same has been executed
on 08.03.2023 i.e. after a period of about seven months.
There is no explanation for the delay that has occasioned in
execution of the impugned detention order;
(II) That the detenue has not been provided the whole of the
material, which prevented him from making an effective
representation against his detention.
6) Regarding first ground, the legal position is well settled that resort
to preventive detention has to be taken only in cases where there is an
urgent need to detain a person so as to prevent him from indulging in
activities which are prejudicial to the maintenance of public order or
security of the State. When there is unsatisfactory and unexplained delay
in executing the order of detention, such delay would throw considerable
doubt on the genuineness of the subjective satisfaction recorded by the
detaining authority. This would lead to a legitimate inference that the
detaining authority was not really and genuinely satisfied as regards the
necessity for detaining the detinue.
7) The Supreme Court has, in the case of Manju Ramesh Nahar vs.
Union of India and others, AIR 1999 SC 2622, while considering a
similar situation observed as under:
This object can be achieved if the order is immediately
executed. If, however, the authorities or those who are
responsible for the execution of the order, sleep over the
order and do not execute the order against the person
against whom it has been issued, it would reflect upon
the satisfaction of the detaining authority and would also
be exhibitive of the fact that the immediate necessity of
passing that order was wholly artificial or non-existent.
8) In another decision in SMF Sultan Abdul Kader vs. Jt. Secy, to
Govt. of India & Ors., (1998) 8 SCC 343, the Supreme Court has held
unexplained delay in execution of the order of detention to be fatal.
Page |4
9) In the instant case, the impugned detention order was issued on
30.08.2022 but the same has been executed on 08.03.2023, i.e. after a
period of about seven months. There is no explanation on the part of
respondents regarding delay in execution of the impugned detention
order. Even the record produced by the respondents does not offer any
explanation for delayed execution of the order of detention. In fact, even
in their counter affidavit the respondents have not offered any
explanation whatsoever regarding delayed execution of the order of
detention.
10) In the grounds of detention it is mentioned that the petitioner was
already in custody at the time of passing of the impugned order. Thus, it
is not a case where the detenue was not available for execution of the
warrant of detention. Therefore, there was no justification for delayed
execution of the warrant of detention. The fact that the impugned
detention order has not been executed by the respondents for about seven
months shows that there was no urgency for taking resort to preventive
detention of the petitioner. There was sufficient time with the
respondents to take resort to normal criminal laws, if at all they wanted
to proceed against the petitioner. The unexplained delay in execution of
the warrant of detention upon the petitioner renders the subjective
satisfaction of the detaining authority doubtful. Consequently, the
impugned order of detention has been rendered unsustainable in law.
11) So far as the next ground of challenge is concerned, a perusal of
the detention record produced by learned counsel for the respondents
Page |5
reveals that the material is stated to have been received by the petitioner
on 08.03.2023. Report of the Executing Officer in this regard forms part
of the detention record, a perusal whereof reveals that it bears the
signature of the petitioner and according to it, copy of detention order
(01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves),
dossier of detention (Nil), copies of FIR, statements of witnesses and
other related relevant documents (01 leaf), total 06 leaves, have been
supplied to him.
12) If we have a look at the grounds of detention, it bears reference to
FIR No.08/2022 of P/S Chanapora. It was incumbent upon the
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 the FIR
is shown, which has not been done. 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
13) Thus, 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,
Page |6
vital safeguards against arbitrary use of law of preventive detention have
been observed in breach by the respondents in this case rendering the
impugned order of detention unsustainable in law.
14) 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).
15) For the foregoing reasons, 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.
16) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
09.08.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
