Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Mir vs Union Territory Of J&K & Ors on 13 December, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.77
Regular List
IN THE HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No.11/2021
SHABIR AHMAD MIR ...PETITIONER(S)
Through: - Mr. B. A. Tak, Advocate.
Vs.
UNION TERRITORY OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Sajad Ashraf, GA
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
13.12.2022
1) Impugned in this petition is order of detention bearing No.112/DMB/PSA/2020 dated 12.12.2020, issued by District Magistrate, Baramulla. In terms of the aforesaid order, Shabir Ahmad Mir @ Molvi son of Late Mohd Sultan Mir resident of Brath Kalan, Sopore, (for short "detenue") has been placed under preventive detention and lodged in District Jail, Srinagar.
2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. It 2 WP(Crl.) No.11/2021 has also been contended that the grounds of detention are vague, non- existent and stale and there is total non-application of mind on the part of the detaining authority.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him; that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit and the impugned detention order has been passed strictly in accordance with law occupying the field. In support of their stand taken in the counter affidavit, the respondents have also produced the detention record.
4) I have heard learned counsel for parties and perused the record.
5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the detenue was not provided whole of the material to enable him to make an effective representation against his detention.
6) So far as the ground of challenge urged by the petitioner is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that certain material is stated to have been received by the petitioner. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears 3 WP(Crl.) No.11/2021 the signature of the petitioner. According to it, only grounds of detention (03 leaves) have been supplied to the petitioner.
7) If we have a look at the grounds of detention, it bears reference to three FIRs, Viz. FIR Nos.130/2016, 77/2017 and 45/2020. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded during investigation of the FIR and other material on the basis of which petitioner's involvement in the said FIR is shown. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well- founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
8) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional 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 the material renders the detention order illegal and unsustainable. While 4 WP(Crl.) No.11/2021 holding so, I am fortified by the judgments rendered in 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).
9) Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.
10) The detention record be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge SRINAGAR 13.12.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No