Jammu & Kashmir High Court - Srinagar Bench
Javid Rasool Dar vs State Of J&K; & Ors. on 2 November, 2018
Serial No.02
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.139/2018
Date of Decision:02.11.2018
Javid Rasool Dar v. State of J&K and anr
Coram:
Hon'ble Mr Justice Rashid Ali Dar Judge.
Appearance:
For the Petitioner(s): Mr. Mir Shafaqat Hussain, Adv.
For the Respondent(s): 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 order No.33/DMB/PSA/2018 dated 13.06.2018, passed by District Magistrate, Baramulla-respondent No.2 herein, whereby Javid Rasool Dar (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in District Jail, Kupwara.
2. The petitioner's case, as set out in the petition, is that the respondents while passing the impugned detention order have violated the procedural safeguards provided under the Constitution and J&K Public Safety Act, they have ignored to provide material relied upon and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.
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. The HCP No.139/2018 Page 1 of 3 detention order has been passed properly after deriving subjective satisfaction by the detaining authority.
4. Heard, perused the records and considered. The detention order is liable to be quashed for the reasons to follow.
5. 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, Baramulla, vide No.CS/PSA/ 2018/4323-26 dated 08.12.2016. The detention record, however, reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The grounds of detention make reference to case FIR No.186/2016 registered in Police Station, Baramulla under Sections 307, 148, 149, 336, 353, 332, 12-B, 153-A RPC and 13 ULA (P) Act, FIR No.220/2017 P/S Baramulla under Section 13 ULA(P) Act, FIR No.56/2018 P/St Baramulla under Section 148, 149, 336, 332 RPC, to have been registered against the detenue. Involvement of the detenue in aforementioned cases appear to have heavily weighed with the detaining authority while passing detention order. The record does not indicate that the copies of aforementioned FIRs, statements recorded under Section 161 Cr. P. C and other material collected in connection with investigation of aforesaid cases 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 draw support from Dhananjoy Dass v. District Magistrate (AIR 1982 SC 1315), Sophia Ghulam Mohd. Bham v. State of HCP No.139/2018 Page 2 of 3 Maharashtra and others (AIR 1999 SC 3051) and Thahira Haris Etc. Etc. v. Government of Karnataka & Ors. (AIR 2009 SC 2184).
6. Article 22(5) of Constitution provides a precious and valuable right to a person detained under preventive4 detention law to make a representation against his detention, it needs no emphasis that a detenu, on whom preventive order is slapped, is held in custody without a formal charge and a trial. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the security of the state. Article 22(5) of the Constitution and Section 13 of the Act, thus makes it obligatory for detaining authority to provide detenu opportunity of making an effective and meaningful representation against his detention. The objection is to enable detenue to convince detaining authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and statutory right available to detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are his apprehended activity/ies that persuaded detaining authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make an effective representation against his detention.
7. For what has been stated above, petition is allowed and order No. 33/DMB/PSA/2018 dated 13.06.2018, is quashed. The detenue is directed to be released forthwith from the preventive detention provided he is not required in connection with any other case.
8. Detention records be returned to the learned counsel for the respondents.
(Rashid Ali Dar) Judge Srinagar 02.11.2018 "Bhat Altaf, PS"
HCP No.139/2018 Page 3 of 3