Jammu & Kashmir High Court - Srinagar Bench
Mohammad Rafiq Mir vs Union Territory Of J&K & Others on 22 September, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT SRINAGAR
WP(Crl) No. 258/2022
Reserved on 07.09.2022.
Pronounced on 22 .09.2022.
Mohammad Rafiq Mir.
.....Petitioner(s)
Through: Mr. Wajid Mohammad Haseeb, Advocate
Versus
Union Territory of J&K & others
.....Respondent(s)
Through: Ms. Insha Rashid, GA.
CORAM: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. District Magistrate, Baramulla-respondent no. 2 herein, by order No. 30/DMB/PSA/2022 dated 08.04.2022, has placed Mohammad Rafiq Mir @ Pala S/o Abdul Rashid Mir R/o Behrampora, Rafiabad Tehsil Watergam, District, Baramulla (for short "detenue") under preventive detention to prevent him from the activities prejudicial to the security of the state and directed his lodgment in Central Jail Kotebhulwal, Jammu. It is this order of which petitioner is aggrieved and challenges the same on the grounds enumerated in the petition.
2. The wife of the detenue has filed the instant petition, stating therein that detenue is a law abiding citizen, has never been involved in any subversive activity, prejudicial to the public order or security of the state. The detenue is the lone bread earner of his family. It is maintained that detenue stands arrested in the month of April, 2022, without any rhyme or reason and was taken to some unknown location for illegal detention where from the detenue was shifted to Central Jail, Jammu, to be detained under the provisions of J&K Public Safety Act in terms of the impugned order. The grounds of detention have WP(Crl) 258/2022 1 no nexus with the detenue and the allegations made therein are vague, non-existent and no prudent man can make a representation against such an order which is based on unjustified and unreasonable. It is also stated that despite attributing several allegations in the grounds of detention, no specific allegation has been made regarding the unlawful activities. The satisfaction recorded by the detaining authority suffers from complete non-application of mind on the part of detaining authority. The grounds of detention are replica of police dossier and have not been prepared by the detaining authority itself which is prerequisite for issuing a detention order. The detaining authority has acted on the dictates of police authorities and has not enquired about the existence of the facts by perusing the supporting material. The relevant material like, copy of dossier and connected material have not been furnished to the detenue, so as to enable him to make an effective and meaningful representation for recalling the order of detention. The material furnished to the detenue is not sufficient for making an effective representation, therefore, Constitutional rights guaranteed to the detenue under Article 22(5) stands infringed. It is urged that the detenue is not an English literate person and understands only Kashmiri/Urdu language but the order of detention is in English and no translated script in Kashmir/urdu was furnished to the detenue nor were the grounds read over and explained to him so that he can make an effective representation. Non-supply of translated script and non-explanation of the grounds of detention has prevented the detenue from making an effective representation, thereby violating the fundamental rights of the detenue guaranteed under Article 22 of WP(Crl) 258/2022 2 the Constitution. In post execution, the detentue was not given any opportunity to make a representation and also was not informed about the right to make such representation which is also in violation of Article 22 of the Constitution. It is also urged that in post detention, a representation was submitted before the respondent No. 2, however, same was not considered. The copy of the representation has been annexed with the petition.
3. The petitioner has raised several other grounds to challenge the detention order. The counsel for the detenue, however only presses aforesaid grounds of challenge.
4. Respondents have filed their reply affidavit stating therein that having regard to the national activities, the detenue had emerged as a threat to the national security and integrity of the country. It is submitted that detenue has developed contacts with various terrorist organizations to carry out the activities of secessionism and creditable information/report received from various agencies suggest that detenue has associated himself with various terrorist organizations. There is, however, no averment in the reply affidavit as to whether the representation made by the wife of the detenue, on 16.09.2022 through registered post has been considered or not.
5. It may not be out of place to mention here that there is not even a single FIR attributed to the detenue either in the counter affidavit or in the grounds of detention.
6. Having heard learned counsel for the parties and perused the material on record, I am of the considered view that the impugned order of detention does not sustain in the eye of law, as the representation WP(Crl) 258/2022 3 made on his behalf by his wife has not been considered by the District Magistrate, Baramulla. Right of the detenue to make a representation and to have same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional.
7. Leaned counsel for the petitioner has mainly laid emphasis on Section 27 of the General Clauses Act, 1897 to indicate that postal receipts on the file sufficiently prove that the representations/letters sent through registered post have been received by the authority.
8. The detenue has not only specifically averred but has also placed on record copy of the representation submitted by the detenue through his wife addressed to the District Magistrate, Baramulla on 16.09.2022.. There is no denial of the same by the respondents in their reply affidavit. In these circumstances, this Court has no option but to presume that the representation has been made by the detenue through his wife to the competent authority which has not been adverted to and considered. That being the admitted position, it is foregone conclusion that the order of detention, impugned in this petition cannot survive on the touchstone of settled legal position and the express right guaranteed to the detenue under Article 22 of the Constitution of India. [See Pankaj Kumar Chakrabarty & others Vs. State of West Bengal, AIR 1970 SC 97, a Constitution Bench Judgment].4
9. That apart, from the perusal of the detention record produced by Ms. Insha Rashd, GA, it is abundantly clear that the detenue has been WP(Crl) 258/2022 4 served with a copy of PSA warrant, notice one leaf and the grounds of detention 02 leaves, but has not been supplied other material relied upon in the grounds of detention viz. dossier, reference of which is made by the Detaining Authority in the grounds of detention. It is thus clear that the detenue has also been deprived of relevant material which was required to be supplied to him along with the grounds of detention so as to enable him to make an effective representation. Even though the detenue was not provided the requisite material, he made a representation through his wife to the competent authority, but same has also not been considered by the competent authority.
10.It has been averred that the allegations reflected in the grounds of detention are far from the reality. The Detaining Authority has mentioned various allegations in the grounds of detention, however, no specific allegation has been mentioned regarding the detenue in the alleged activities mentioned in the grounds of detention which could connect the detenue with such activities. The very basis of the satisfaction recorded by the Detaining Authority in issuing the impugned order of detention are inconsistent and suffers from complete non-application of mind.
11.Failure on the part of detaining authority to supply material, relied upon at the time of making detention order, to detenue, renders detention order illegal and unsustainable. I am drawing the support from the law laid down in Thahira Haris Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR WP(Crl) 258/2022 5 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K &ors, 2009 (I) S.L.J 219.
12.Besides what has been discussed hereinabove, on going through the grounds of detention, there is no mention of the particulars of any place, identity of person alleged to have received support of the detenue. Therefore, these grounds appear to be vague and are lacking in the material particulars, as such, the detenue could not make an effective representation against his detention on the basis of vague allegations. Thus there has been violation of Constitutional guarantees envisaged under Article 22(5) of the Constitution and resultantly the detention order is illegal and unsustainable. In the aforesaid view, I am drawing support from the judgments of the Hon'ble Supreme Court in cases of JahangirKhan FazalKhan Pathan vs. Police Commisioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v. Police Commissioenr, Ahmadabad, AIR 1989 SC 2265.
13.For the foregoing reasons, this petition is allowed and detention Order No. 30/DMB/PSA/2022 dated 08.04.2022, passed by District Magistrate, Baramulla, is quashed. Respondents are directed to release the detenue forthwith, provided he is not required in any case. Disposed of.
14.Detention record be returned to Ms. Insha Rashid, learned counsel for respondents forthwith.
(MOKSHA KHAJURI KAZMI) JUDGE SRINAGAR 22.09.2022 "Abdul Rashid PS"
Whether the order is reportable: Yes/No WP(Crl) 258/2022 6