Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Bhat vs State Of J&K And Ors on 17 September, 2020
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
WP (Crl.) No. 345/2019
Pronounced on 17th.09.2020
Fayaz Ahmad Bhat .... Petitioner(s)
Through:- Mr. Wajid Haseeb, Advocate
V/s
State of J&K and ors. .....Respondent(s)
Through:- Mr. M. A. Chashoo, AAG
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. This Habeas Corpus Petition has been filed by the detenu through his wife assailing detention order No. 39/DMS/PSA/2019 dated 10.08.2019 passed by the District Magistrate, Shopian detaining detenu- Fayaz Ahmad Bhat S/o Ghulam Mohammad Bhat R/o Zainapora, District Shopian under Section 8 (a) of J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State/Country.
02. The order of detention has been assailed on the ground that the cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated in order to justify the illegal detention of the detenu. The allegations in the grounds of detention are vague and non- existence and, as such, passing of detention order on such grounds is un- reasonable and unjustified. The detenu was already admitted to bail in the cases mentioned in the grounds of detention, however, this fact has not been 2 WP (Crl.) No. 345/2019 reflected in the grounds of detention. On this ground, the detention is bad and same deserves to be quashed.
03. Mr. Wajid Haseeb, learned counsel for the detenu contends that the order of detention suffers from lack of application of mind, as the grounds of detention are simply a copy of dossier prepared by the Police, as such, the detention is unsustainable. It is also submitted that the detenu has not been furnished all the relevant material relied upon by the Detaining Authority while passing the order of detention, thus, it has prevented the detenu from making an effective representation which vitiates the order of detention.
04. Mr. M. A. Chashoo, learned AAG appearing on behalf of the respondents, has filed counter affidavit as well as produced the detention record. He submits that the detention of the detenu was based on the subjective satisfaction of the Detaining Authority of reasonable probability of likelihood of detenu acting in a manner similar to his past acts and by preventing him by way of impugned detention. It is further submitted that the detenu was detained under the provisions of the Jammu & Kashmir Public Safety Act by passing the order of detention dated 10.08.2019.
05. According to the learned AAG, the grounds of detention, dossier, FIR, copies of all relevant documents were supplied to the detenu through police authority to enable him to make an effective representation and notice under Section 13 of the Jammu & Kashmir Public Safety Act was also served upon the detenu. Thus, all statutory requirements and constitutional guarantees have been fulfilled and complied with by the Detaining Authority and the Detaining Authority after arriving at subjective satisfaction has passed the order of detention.
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06. Heard learned counsel for the parties and perused the record also.
07. Perusal of the record reveals that all the material relied upon by the Detaining Authority has not been supplied to the detenu while passing the order of detention. There is no document on record to indicate that the detenu has been supplied all the material relied upon by the Detaining Authority. Even the execution report is not available on record. Therefore, the contention of the detenu has to be accepted that all the relevant material was not supplied to him. This non-supply of the material relied upon by the Detaining Authority while passing the order of detention affects the rights of the detenu to make an effective representation and violates Article-22(5) of the Constitution of India and Section 13 of the PSA Act, as such, the detention is vitiated.
08. The Apex Court in its judgment captioned Thahira Haris etc. etc. Vs. Government of Karnataka and others, AIR 2009 Supreme Court 2184, has held as under:
"27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone.
28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without 4 WP (Crl.) No. 345/2019 any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."
09. Another contention raised by counsel for the detenu was that the grounds of detention are simply a copy of dossier prepared by the police and there is total non-application of mind by the Detaining Authority while passing the order of detention, as such, the detention is vitiated. Perusal of the record reveals that the grounds of the detention, copy of dossier and its manner of drafting reveals that where the word 'subject' was used in the dossier, it changed to 'you' in the grounds of detention. Rest of the contents of two documents contain 10 paras which are almost same and the District Magistrate has reproduced the entire dossier without applying his mind to the same while deriving his subjective satisfaction, which shows complete non-application of mind by the Detaining Authority while exercising powers under Section 8 of the J&K Public Safety Act. The Apex Court in Jai Singh and ors. Vs. State of Jammu & Kashmir, AIR 1985 SC 764 has held as under:-
"...........First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words 5 WP (Crl.) No. 345/2019 "the subject is" into "you Jai Singh, s/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in, the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
10. Similar view has already been expressed in Mohd. Maqbool Beigh Vs. State of J&K & Ors. 2007 (3) JKJ 106 and Azad Ali Khan vs. State of J&K & ors., 2007 (2) JKJ 34. Thus, there appears to be complete non-application of mind by the Detaining Authority while directing preventive detention, therefore, the detention is unsustainable.
11. In view of the aforesaid discussion and without adverting to the other grounds raised, this petition is allowed. Accordingly, impugned detention order No. 39/DMS/PSA/2019 dated 10.08.2019 passed by the District Magistrate, Shopian, is quashed. The detenu is directed to be released from the preventive custody forthwith provided he is not required in any other case.
12. Detention record be returned back to learned counsel for the respondents forthwith by the Registry.
(Sindhu Sharma) Judge SRINAGAR 17th .09.2020 Ram Murti Whether the order is speaking : Yes Whether the order is reportable : Yes/No RAM MURTI 2020.09.18 18:07 I attest to the accuracy and integrity of this document