Jammu & Kashmir High Court - Srinagar Bench

Shoib Ramzan Tantray vs Ut Of J&K & Another on 21 February, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                              Reserved on:   12.02.2025
                                              Pronounced on: 21.02.2025

                         WP(Crl) No.116/2023

SHOIB RAMZAN TANTRAY                              ...PETITIONER(S)
             Through: - Mr. Hussain Rashid, Advocate.
Vs.

UT OF J&K & ANOTHER                               ...RESPONDENT(S)
             Through: - Mr. Syed Musaib Dy. AG.

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

                                JUDGMENT

1) The petitioner has challenged detention order bearing

No.09/DMB/PSA/2023 dated 23.02.2023, issued by District

Magistrate, Baramulla, in exercise of powers conferred by clause

(a) of Section 8 of the J&K Public Safety Act, 1978, whereby the

detenue, namely, Shoib Ramzan Tantry has been placed under

preventive detention so as to prevent him from indulging in the

activities which are prejudicial to the security of the State.

2) It has been contended by the petitioner that the impugned

detention order has been passed without application of mind as the

grounds of detention are vague, non-existent and stale on which no

prudent man can make a representation against such allegations. It has

been further contended that the procedural safeguards have not been

complied with in the instant case, inasmuch as whole of the material has

not been provided to the petitioner. It has been further urged that there

has been non-application of mind on the part of detaining authority while

passing the impugned detention order as the detenue was already

admitted to bail in one of the FIRs mentioned in the grounds of detention

but the said fact is not mentioned in the grounds of detention.

3) The respondents, in their counter affidavit, have contended that

none of the legal rights of the petitioner have been infringed or violated.

It has been further contended that the activities of the detenue are highly

prejudicial to the security of the State. It is pleaded that the detention

order and grounds of detention along with the material relied upon by

the detaining authority were handed over to the detenue and the same

were read over and explained to him. It has been further contended 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 also averred in the reply affidavit that all statutory requirements and

constitutional guarantees have been fulfilled and complied with by the

detaining authority and that the 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) 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 non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.210/2021

registered with P/S Sopore, but this fact has not been mentioned in the grounds of detention.

(ii) That whole of the material that formed basis of the grounds of detention has not been supplied to the petitioner, thereby violating his right of making an effective representation against his detention.

5) In rebuttal, learned counsel for the respondents has made an

attempt to justify the passing of the order impugned by contending that

the detenue is a habitual criminal, inasmuch he is involved in various

criminal acts and, as such, the Detaining Authority was well within its

jurisdiction to pass the impugned order of detention as there was every

likelihood of the detenue indulging in similar activities. It has been

further contended that all the documents relied upon by the Detaining

Authority were, provided to the detenue and in token of having received

the same, the detenue has signed the receipt. It is also urged that the

contents of the documents were read over and explained to the detenue

in the language understood by him.

6) So far as the first ground of challenge is concerned, from a perusal

of the material available on file, the ground regarding non-application of

mind on the part of the detaining authority appears to be forceful,

inasmuch as the grounds of detention do not bear any reference to the

fact that the petitioner had already been admitted to bail in FIR

No.210/2021 registered with P/S Sopore in terms of the order passed by

the court of competent jurisdiction. The petitioner has placed on record

a copy of order dated 11.02.2023 passed by learned Chief Judicial

Magistrate, Baramulla (H.Q. Sopore), whereby he has been enlarged on

bail in a case arising out of FIR No.210/2021 for offences under Section

307, 120-B IPC and 7/27 Arms Act. The non-mentioning of this

important fact in the grounds of detention exhibits non-application of

mind on the part of detaining authority. This shows that the detaining

authority has not meticulously examined the record while passing the

impugned order of detention which renders the same unsustainable in

law. I am supported in my aforesaid view by the judgment of the

Supreme Court rendered in the case of Anant Sakharam Raut v. State

of Maharashtra & Ors. AIR 1987 SC 137.

7) So far as the next ground of challenge is concerned, a perusal of

the detention record produced by learned counsel for the respondents

reveals that the material is stated to have been received by the petitioner

on 25.02.2023. 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 (02 leaves),

dossier of detention (02 leaves), copies of FIR, statements of witnesses

and other related relevant documents (04 leaves), total 10 leaves, have

been supplied to him.

8) If we have a look at the grounds of detention, it bears reference to

as many as four FIRs viz. FIR Nos.210/2021 of P/S Sopore, 50/2018 of

P/S Bomai, 109/2021 of P/S Sopore and 163/2021 of P/S Sopore. It was

incumbent upon the respondents to furnish not only copies of the FIRs

but also the statements of witnesses recorded during investigation of the

said FIRs and other material on the basis of which petitioner's

involvement therein 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 four leaves. 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-