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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Imran Sofi vs State Of Jk And Others on 10 October, 2018

Author: Rashid Ali Dar

Bench: Rashid Ali Dar

Serial No.02
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                  HIGH COURT OF JAMMU AND KASHMIR
                            AT SRINAGAR
HCP No.211/2018
                                                  Date of decision: 10.10.2018

Mohammad Imran Sofi                   v.          State of J&K and ors.

Coram:
             Hon'ble Mr Justice Rashid Ali Dar, Judge.

Appearance:

For the Petitioner(s):    Mr. M. A. Qayoom, Advocate.
For the Respondent(s): Mr. Irfan Andleeb, Dy.AG.

i) Whether approved for reporting in Yes/No Law journals etc.:

ii)    Whether approved for publication
       in press:                                           Yes/No

1. Pursuant to order No.03-DMG-PSA-2018 dated 09.07.2018, passed by respondent No.2- District Magistrate, Ganderbal, the petitioner namely Mohammad Imran Sofi has been taken into custody by invoking the powers under section 8 of the J&K Public Safety Act, 1978 and lodged at Kotbhalwal Jail, Jammu. By the instant petition the order passed by respondent No. 2 is sought to be quashed while pleading, various grounds, including:-

I) Respondent No. 2 having passed the order of detention of the detenue on the basis of letter No. Legal/Dossier/18/20674-76 dated 27.06.2018 addressed HCPNo.211/2018 Page 1 of 6 to him by respondent No. 3, with which he had produced material record such as dossier and other connecting documents before respondent No. 2. The respondent No.

2 has not, however, furnished copy of the letter dated 27.06.2018 along with connecting documents to the detenue to enable him to make an effective representation.

II) The respondent No. 2 having passed the order of detention on 9-7-2018, but the order having been executed in the month of August, 2018. There has therefore, delay in the execution of the order of detention which renders it void.

III) According to the grounds of detention, the detenue is shown to be involved in as many as seven FIRs registered by Police Station against him. In all the FIRs except FIR No. 20/2018 he has been granted bail by the court of competent jurisdiction. He has not however filed any bail application in FIR No. 20/2018 before any court. In view of the matter, the respodnet No. 2 had no jurisdiction to detain the detenue under the provisions of the Public safety Act.

IV) He has also not been given the copies of statement, if any, recorded under section 161 of CrPC, which could have enabled him to make effective representation, Furthermore detenue has also not been given translated HCPNo.211/2018 Page 2 of 6 copies of detention order and other material to enable him to make effective representation.

2. Counter has been filed, by the respondents wherein it is stated:

I) That the detention order along with grounds of detention and other relevant material were supplied to the detenue through Superintendent of Police, Ganderbal. II) That the detenue stands detained on the reasons mentioned in the grounds of detention and the detenue is further involved in FIRs. Further it is stated that the detenue is B.A 1st year and understands English/ Urdu language besides his mother tongue also i.e. Kashmiri and the grounds of detention were explained to him in both the two languages. Also the material was supplied to him, for satisfying the detenue the reasons and grounds explained in the grounds of detention. III) That the detenue has been in the forefront of numerous reported stone pelting incidents. Moreover, is indulging in encouraging and instigating the minors of the area to resort to stone pelting on commercial establishments, Govt.,/ Police, Paramilitary Forces/ Private vehicles.

3. Learned counsel for the petitioner submitted that the impugned order has been passed in breach of statutory provisions and a law as interpreted by the Hon'ble Apex Court from time to time. He has in particular referred to judgements of Hon'ble Apex Court, "Sophia Gulam Mohd. Bham v. State of Maharashtra & ors" (AIR 1999 SC HCPNo.211/2018 Page 3 of 6 3051), and Rekha Vs. State of Tamil Nadu and anr, reported in (2011) 5 SCC 244.

4. Learned Dy.AG, has however submitted that the order passed by the respondent No. 2 is in accordance with the law.

5. Considered the rival submissions and perused the material on record.

6. Involvement of the detenue in cases referred in grounds appears to have heavily weighed with the detaining authority while passing detention order. Nothing has been herein brought on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161 Cr. P. C and other material collected during investigation were involved in detention. Rather the record produced by respondent No. 2 corroborates the fact that the material relied on by the detaining authority and transmitted to by him the concerned sponsoring agency has not been furnished to him. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of making representation which is his constitutional and statutory 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 material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Dhananjoy Dass v. District Magistrate (AIR 1982 SC 1315). 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).

7. Pertinent to quote the below mentioned observations of Hon'ble Apex Court in Sophia Ghulam Mohammad Vs State of Maharashtra) AIR 1999 SC, 3051:

"The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."

8. In "Ibrahim Ahmad Batti v. State of Gujarat, (1982) S SCC 440, the Hon'ble Apex Court, while relying on its earlier judgmentKhudiram Das v. State of W.B, (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531; Shalini Soni v. Union of India, (1980) 4 SCC 544; Lulluabhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427; Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748 and Sunil Dutt v. Union of India, (1982) 3 SCC, in paragraph 10 of the judgment, has held as under:

"Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases : (a) all documents, statements and other materials incorporated in the grounds by reference and which HCPNo.211/2018 Page 5 of 6 have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 (5) of the Constitution."

9. For what has been stated above, the petition is allowed. Impugned detention order No.03-DMG-PSA-2018 dated 09.07.2018, passed by respondent No. 2 is quashed and the detenue is directed to be released from the preventive custody forthwith unless, of course, not involved in any other case.

10. The petition stands, accordingly, disposed of. Detention records, as produced, be returned to the learned counsel for the respondents.

(Rashid Ali Dar) Judge Srinagar 10.10.2018 "Ishaq"