Jammu & Kashmir High Court - Srinagar Bench
Danish Maqbool Sheikh vs Union Territory Of J&K & Anr on 9 November, 2022
Page |1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Cr.) No. 320/2021
Reserved on: 03.11.2022
Pronounced on: 09.11.2022
Danish Maqbool Sheikh
...Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Asif Maqbool, Dy.AG vice
Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE MD. AKRAM CHOWDHARY, JUDGE
JUDGMENT
1. District Magistrate Srinagar -Respondent No.2 (hereinafter for short 'detaining authority') in exercise of powers conferred on him under Section 8 of the J&K Public Safety Act, 1978, has passed the detention order No. DMS/PSA/96/2021 dated 09.12.2021 (for short 'impugned order'), in terms whereof the detenue has been detained. The said detention order has been challenged through the medium of instant petition, allegedly being in breach of the provisions of Article 22(5) of the Constitution of India.
2. It is being pleaded in the petition that the detenue was arrested in the month of October, 2021 by the police without any justification and was placed in illegal confinement. It is being contended that the allegations/grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective Page |2 representation against these allegations. Furthermore, it is stated that the allegations whose mention is made in the grounds of detention have no nexus with the detenue and have been fabricated by the police in order to justify its illegal action of detaining the detenue. In addition, it is stated that the detaining authority has not prepared the grounds of detention by itself whileas same is replica of the police dossier. Also it is being pleaded that the detaining authority has not furnished the material and other connected documents, relied upon, to the detenue to enable him to make an effective representation. Detenue has also not been informed that within what time-frame he can make representation against his detention, which clearly shows violation of the right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.
3. Respondents in their counter affidavit/reply have stated that the grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention. Further it is contended that the grounds of detention give complete account of the activities of the detenue which on the face of it are highly prejudicial for maintenance of security of the State, as such, there was no option left but to order detention of the detenue under Public Safety Act.
4. The main plea of learned counsel for the detenue is that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. The detaining authority has not mentioned any Page |3 FIR in the grounds of detention if the detenue was involved in any unlawful activity why criminal law has not been set in motion and why they have chosen to preventive detention directly. All the allegations levelled against the detenue are far from reality and that the detenue is not involved in any unlawful activity.
5. Learned counsel for the detenue however, submits that the detenue has made a post detention representation to the concerned authority but the same was not considered at all, also the detenue was never produced before the Advisory Board.
6. In rebuttal, learned Dy.AG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.
7. Heard, perused the detention record and considered.
8. Perusal of the record reveals that the detenue was furnished only two documents i.e., detention warrant and grounds of detention pursuant to the order impugned in terms of which he was taken into custody. He has not been provided copy of the communication of the sponsoring agency referred to in the impugned order which is stated to have been received from the said agency, on which the detaining authority has stemmed its subjective satisfaction.
Page |4
9. The Hon'ble Apex Court in the judgment rendered in the case 'Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC 3051)', has held as under:-
"The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
10. 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 and meaningful representation against his detention.
11. It is also a fact that time frame within which representation was required to be filed has not been conveyed to the detenue. This too has to be treated a breach of right of the detenue under Section 13 of Public Safety Act and Article 22 of the Constitution of India. Allahabad High Court has rendered the judgment in the case 'Jitendra Vs. District Magistrate (2004 CriLJ 2967) in this regard and has observed that:
"...There is another reason as to why in our judgment the impugned detention order would be vitiated. Since the detenue's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining Page |5 authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government."
12. On the touchstone of the law laid down above and the rival submissions, the order of detention, impugned in the instant petition, does not sustain on the aforesaid grounds.
13. In the afore-stated backdrop, this petition is allowed. Order of detention No. DMS/PSA/96/2021 dated 09.12.2021 passed by District Magistrate Srinagar is, as such, quashed. The detenue namely Danish Maqbool Sheikh S/O Mohammad Maqbool Sheikh R/O Naikpora Padshahibagh Srinagar, is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s). Detention record, as produced, be returned to learned counsel for the respondents.
14. Disposed of, as such.
(MD. AKRAM CHOWDHARY) JUDGE Srinagar 09.11.2022 Muzammil. Q Whether the order is reportable: Yes / No