Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Ahmad Wani vs Union Territory Of J&K on 28 August, 2023
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Cr1) No. 239/2022
Pronounced on:28.08.2023
Ishfaq Ahmad Wani .... Petitioner(s)
Through:- Mr. M. A. Makroo, Advocate,
V/s
Union Territory of J&K .....Respondent(s)
&anr.
Through:- Mr. M. Younis, Assisting
counsel
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner was placed under detention by the District Magistrate Kulgam vide Order No.13/DMK/PSA/2022 dated 08.04.2022 under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to security, sovereignty and integrity of the State. This order of detention has been assailed by the petitioner through his brother-Ishtiyaq Ahmad Wani.
02. The contention of the petitioner is that the Detaining Authority while passing the order of detention has not applied its mind. It is further submitted that the procedural safeguards provided to him under the Constitution of India and Public Safety Act have not been complied with by the Detaining Authority. All the material relied upon by the Detaining Authority while passing the order of detention has also not been supplied to him. The petitioner has filed representations dated 27.04.2022 and 28.04.2022 before respondent Nos.1 & 2 respectively but the same have not considered by the respondents. The respondents have not supplied the 2 WP(Cr1) No. 239/2022 documents i.e., order of detention, dossier, copy of FIRs, recovery memo, statements under Section 161 Cr.P.C. and other documents relied upon by him. The detenu at the time of passing the order of detention was already in custody and the detention order nowhere makes even a whisper about the date of arrest and the grounds of detention were never explained to the detenu in the language which he could have understood.
03. Mr. M. Younis, learned assisting counsel appearing on behalf of the respondents has filed the counter affidavit as well as produced the detention record. Learned counsel for the respondents submits that the activities ofthe detenue are highly prejudicial to the security of the State, as such, hewas detained to prevent him from such actions. All the procedural safeguards and constitutional guarantees were duly complied with by the Detaining Authority. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been provided to the detenu and he was also informed of his right to make an effective representation against the order of detention.
04. Heard learned counsel for the parties and perused the record also.
05. The first contention raised by the petitioner is that all the material relied upon by the Detaining Authority has not been provided to him. The receipt of grounds of detention and other relevant record reads as under:-
'Received copies of detention order (01 leaf), Notice of detention (01leaf) grounds of detention (02 leaves ), Dossier of detention (nil) Copies of FIR, Statements of witnesses and other related relevant documents (nil ) ( Total 04 Leaves) through executing officer ...........'
06. Perusal of the same reveals that the petitioner has received only notice and the grounds of detention but the dossier and other material relied upon by the Detaining Authority has notbeen provided to the detenu. The 3 WP(Cr1) No. 239/2022 detention order dated 08.04.2022 is based on all the material placed before the Detaining Authority which includes the dossier submitted by the Senior Superintendent of Police, Kulgam. The petitioner was, thus, prevented from making an effective representation due to non-supply of entire material relied upon by the Detaining Authority while arriving at a subjective satisfaction. In order to make an effective representation, the petitioner must know, what weighed with the Detaining Authority while passing the order of detention and non-supply of the samehas hampered him from making an effective representation.
07. This non-supply of material had prevented the petitioner from making an effective and purposeful representation and failure in supplying the same has rendered the detention unsustainable in law.
08. In view of the law laid down in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, reported as AIR 1999 SC 3051, the Apex Court observed as under:-
"... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all thematerial on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order ofdetention can be assailed only when all the grounds on whichthe order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in hisown language..."
09. Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicated to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention. This right to make 4 WP(Cr1) No. 239/2022 a representation can only be exercised by the petitioner provided all the material relied upon, while passing the order of detention are provided to be detenu. In order to make an effective representation, the detenu must know the fact of what weighed in the mind of the Detaining Authority for passing the impugned order of detention. The grounds of detention reveal that the petitioner was involved in FIR No. 204/2021 under Sections, 147, 148, 149, 336, 427, 332, 307 IPC and 13 ULAP Act at Police Station Kulgam. The petitioner submits that he was already in custody when the respondents have passed the detention order.
10. Learned counsel for the petitioner submits that the detenu was already under custody in FIR No. 204/2021 under Sections, 147, 148, 149, 336, 427, 332, 307 IPC and 13 ULAP Act at Police Station Kulgam and there was no compelling reason for the Detaining Authority to pass the impugned detention order and that the Detaining Authority has not given any compelling reason for detaining the detenu under preventive law.
11. It is well settled that preventive detention order can be passed, if a person under the police/judicial custody is involved in criminal cases but for doing so, the compelling reasons are to be recorded as to why the detenu cannot be prevented from indulging in subversive activities by resorting to normal law. In the absence of these reasons, the order of detention becomes unsustainable under law. The Hon'ble Supreme Court has clarified this view in Surya Prakash Sharma vs. State of U.P. & ors., reported as 1994 SCC (Cr.) 1691 and Sama Aruna Vs. State of Telengana reported as AIR 2017 SC 2662. The Detaining Authority having failed to give any compelling reason while passing the order of detention which has become vitiated. 5 WP(Cr1) No. 239/2022
12. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and detention Order No. 13/DMK/PSA/2022 dated 08.04.2022, passed by the District Magistrate, Kulgam under which detenu Ishfaq Ahmad Wani S/o Sh. Ali Mohammad Wani R/o Arreh, District Kulgam, is under detention, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case.
13. Detention record be returned to learned counsel for the respondents by the Registry forthwith.
(Sindhu Sharma) Judge SRINAGAR 28.08.2023 Ram Murti/PS Whether the judgment is speaking : Yes/No Whether the judgment is reportable : Yes/No