Jammu & Kashmir High Court - Srinagar Bench
Towseef Ahmad Mir vs Union Territory Of J&K & Ors on 16 December, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 23.11.2022
Pronounced on: 16.12.2022
WP(Crl) No.257/2021
TOWSEEF AHMAD MIR ...PETITIONER(S)
Through: - Mr. Shafqat Nazir, Advocate.
Vs.
UNION TERRITORY OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Asif Maqbool, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the instant petition, veracity and legality of the detention order No.57/DMP/PSA/21 dated 20.10.2021, issued by District Magistrate, Pulwama (for brevity "detaining authority") has been challenged. In terms of the aforesaid order, Towseef Ahmad Mir son of Bashir Ahmad Mir resident of Chakoora Tehsil Litter District Pulwama (for short "detenue") has been placed under preventive detention and lodged in Central Jail, Kothbalwal, Jammu.
2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the allegations mentioned in the grounds of detention have no nexus with the detenue and 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 2 WP(Crl.) No.257/2021 vague, on the basis of which no prudent man can make a representation against such allegations. It has been further contended that the Statutory safeguards 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.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of 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. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record.
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 ground that the detenue was not provided whole of the material to enable him to make an effective representation against his detention.
6) So far as the ground of challenge urged by the petitioner is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that certain material is stated to have been received by the petitioner. Report of the Executing Officer in this regard 3 WP(Crl.) No.257/2021 forms part of the detention record, a perusal thereof reveals that it bears the signature of the petitioner. According to it, copy of the detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (Nil), total (04) 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 police dossier has not at all been supplied to the detenue. If we have a look at the grounds of detention, it bears reference to two FIRs i.e. FIR No.43/217 and FIR No.138/2017. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner's involvement in the said FIRs is shown. Apart from this, the grounds of detention bear reference to proceedings under Section 107 and 151 of Cr. P. C against the detenue but the copies of relevant documents pertaining to these proceedings have also not been provided to the detenue, as is clear from the detention record.
8) 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, 4 WP(Crl.) No.257/2021 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.
9) 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. 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).
10) 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.
11) The detention record be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge SRINAGAR 16 .12.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No