Jammu & Kashmir High Court - Srinagar Bench
Shoib Ramzan Tantray vs State Of J&K; & Ors. on 7 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No.09
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.157/2018
Date of decision:07.02.2019
Shoib Ramzan Tantray v. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Shafqat Nazir, Adv.
For the Respondent(s): Mr. Mir Suhail, AAG, vice Mr. Shah Aamir, AAG.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) Challenge in this petition is to the order No.36/DMB/PSA/2018 dated
20.06.2018, passed by District Magistrate, Baramulla-respondent No.2 herein in exercise of vested in him under Section 8 of the J&K Public Safety Act, whereby Shoib Ramzan Tantray (hereinafter referred to as the detenue), has been taken into preventive custody so as to prevent him from acting in any manner prejudicial to the security of the State.
2) The respondents have filed their response and also produced the detention records.
3) Heard, perused the records and considered. The detention order is liable to be quashed for the reasons to follow.
4) The detention order makes mention of material record, such as "dossier and other connected documents" relied upon by the detaining authority while passing the detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police, Sopore, vide No.PROSS/PSA-02/2018/17046 HCP No.157/2018 Page 1 of 2 dated 13.06.2018. However, nothing has been brought on record to show that the documents referred to in the detention order were ever supplied to the detenue. The grounds of detention make reference to case FIR No.50/2018 registered at Police Station, Bomai, under Section 13 ULA(P) Act, to have been registered against the detenue. Involvement of the detenue in aforementioned case appears to have heavily weighed with the detaining authority while passing detention order. Nothing has been brought on record to indicate that the copies of aforementioned FIR, statements recorded under Section 161 Cr. P. C and other material collected in connection with investigation of aforesaid case were ever supplied to the detenue. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights 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. If the detenue is not supplied the material on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention. 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).
5) For what has been stated above, the petition is allowed. Impugned order is quashed. The detenue is directed to be released from the preventive custody provided he is not required in connection with any other case.
6) Detention records be returned to the learned counsel for the respondents.
(Rashid Ali Dar) Judge Srinagar 07.02.2019 "Bhat Altaf, PS"
HCP No.157/2018 Page 2 of 2