Jammu & Kashmir High Court - Srinagar Bench
Abdul Rashid Lone vs Ut Of J&K And Anr on 21 May, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 05.05.2022
Pronounced on:21.05.2022
WP(Crl.) No.108/2021
ABDUL RASHID LONE ...Petitioner(s)
Through: - Mr. Sajad Geelani, Advocate.
Vs.
UT OF J&K AND ANR. ...Respondent(s)
Through: - Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Challenge in this petition is to the order No.DMS/PSA/31/2021 dated 29.07.2021, issued by District Magistrate, Srinagar-respondent No.2 herein, in terms whereof, Shri Abdul Rashid Lone S/o Ghulam Ahmad Lone R/o Chattergul Kangan A/P Dangerpora Tailbal, Srinagar (hereinafter referred to as the detenue), has been placed under preventive custody and lodged in Central Jail, Srinagar.
2) The petitioner has contended that the Detaining Authority has passed the impugned detention order without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the material forming the basis of the 2 WP(Crl.) No.108/2021 impugned order of detention and translated version thereof has not been provided to the detenue who is a semi-literate person. The petitioner has further contended that the detaining authority has not spelt out the compelling reasons while passing the impugned order.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.
4) Considered the rival submissions and perused the material available on the file as also the detention record as produced by the learned counsel for the respondents.
5) Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the main grounds that have been argued during the course of arguments are that the detenue was not furnished whole of the material which formed basis of the impugned order of detention thereby depriving him from making an effective representation against his detention and that the detenue was already implicated in various FIRs and there were no compelling reasons 3 WP(Crl.) No.108/2021 for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive laws.
6) So far as the first 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 02.08.2021. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the signature of petitioner and according to it, copies of detention warrant, notice of detention, grounds of detention copies of FIR, in total eight leaves, have been supplied to him.
7) It is clear from the execution report, which forms part of the detention record, that copy of the dossier has not at all been supplied to the detenue. Apart from this, if we have a look at the grounds of detention, it bears reference to four FIRs Viz. FIR No.15/2013 for offences under Section 148, 149, 332, 427 RPC of P/S Nigeen, FIR No.01/2018 for offences under Section 13 ULA(P) Act, 147, 148, 336, 153 RPC of P/S Trehgam, FIR No.99/2019 for offences under Section 147, 332, 336 IPC of P/S Nigeen and FIR No.03/2020 for offences under Section 147, 148, 149, 336, 323, 307 IPC of P/S Nigeen. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded under Section 161/164 of the Cr. P. C during investigation of these FIRs as well as the other material on the basis of which petitioner's involvement in these FIRs is shown, particularly when the petitioner is not nominated in these FIRs. Thus, 4 WP(Crl.) No.108/2021 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 a 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 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 detention order is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. 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).
9) The other ground projected by the learned counsel for the petitioner is that the detenue was already implicated in FIR Nos.15/2013, 01/2018, 99/2019 and FIR No.03/2020, and there were no compelling reasons for the Detaining Authority to pass the impugned detention order and that 5 WP(Crl.) No.108/2021 the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention.
10) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691.
11) It is also settled position of law that a person involved in a criminal case can be detained under the provisions of preventive detention laws provided there are compelling circumstances for doing so otherwise the order of detention becomes unsustainable. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of T. P. Moideen Koya vs. Government of Kerala and ors." 2004 (8) SCC 106:
12) Adverting to the facts of the instant case, the detention record shows that the petitioner was implicated in FIR Nos.15/2013, 01/2018, 99/2019 and FIR No.03/2020. There was no material on record, excepting the allegations made in the aforenoted FIRs, before the Detaining Authority which would have compelled it to pass the impugned detention order against the petitioner who was already booked for commission of a substantive offence. When it is so, the Detaining Authority was bound to 6 WP(Crl.) No.108/2021 record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law. There are no such reasons or material available on record. The impugned order of detention of the petitioner is, therefore, unsustainable in law.
13) For the afore-stated reasons, the petition is allowed and the impugned order of 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.
14) The record, as produced, be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge Srinagar 21.05.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No