Jammu & Kashmir High Court - Srinagar Bench
Javid Ahmad Gojiri vs Union Territory Of J&K & Others Through on 2 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 176/2023 CrlM No. 1539/2024
Reserved on:19.12.2024
Pronounced on:02.01.2025
Javid Ahmad Gojiri, Aged 30 years
S/o; Abdul Rehman Gojiri
R/o; Mohalla Jamia, Tehsil Baramulla,
District Baramulla, through his father Abdul
Rehman Gojiri F/o; Javaid Ahmad Gojiri
R/o Mohalla Jamia, Distrct Baramulla
....Petitioners
Through:
Mr. S. T. Hussain, Sr. Advocate with
Ms. Nida Nazir, Advocate.
Vs.
1. Union Territory of J&K & Others through
Principal Secretary to Government, Home
Department J&K, Government, Civil
Secretariat, Srinagar/Jammu.
2. District Magistrate, Baramulla.
Through:
Mr. Hakim Aman Ali, Dy.AG.
....Respondents
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. The detenue through his father has filed the instant habeas corpus petition to challenge and seek quashment of the order No. 31/DMB/PSA/2023, dated 08.05.2023, for short impugned order, in terms whereof the detenue Javaid Ahmad Gojiri S/o Abdul Rehman Gojiri R/o Mohalla Jamia, district Baramulla has been detained by WP(Crl) No.176/2023 Page 1 of 7 respondent No. 2, under Public Safety Act, 1978 on a variety of grounds taken in the memo of the petition.
2. Upon notice respondents have appeared and filed their counter affidavit resisting the claim of the petitioner.
Brief Facts:3. The petitioner is stated to be "deeply influenced by radical ideology"
and is associated with JeM militant outfit, which is considered to be the most dreaded terrorist organization operating in the UT of Jammu and Kashmir. It is also stated that the petitioner is nurturing deep anti-national sentiments having main aim and objective to secede the J&K from the Union of India and to annex it with Pakistan. It is intimated that the detenue is also working as Over Ground Worker, for the JeM militant outfit thereby providing logistic support to the terrorists of JeM outfit operating in the area. It is stated that the detenue has significant potential to motivate more youth towards terrorism in the valley. It is further stated that the detenue has an "evil ideology" which would foment trouble and was a threat to the security of the Union Territory of Jammu & Kashmir creating a fear psychosis in the minds of the people in that area and was stoking secessionist sentiments in the valley. It is stated that the detenue being an incorrigible, anti-social element had involvement in the criminal cases registered against him organizing and leading unlawful demonstrations to create an atmosphere of unrest in Baramulla town. The petitioner was accordingly booked in case FIR Nos. 29/2011 for the commission of offences punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the commission of offences punishable in terms of sections 153, 120-B, 506 RPC and 91/2013 for the commission of offences punishable under sections 188, 148, 149, 336, 307 RPC registered at Police Station Baramulla. Subsequently, the detenue has been detained under preventive detention in terms of the impugned order for his activities prejudicial to the security of state.WP(Crl) No.176/2023 Page 2 of 7
4. The petitioner has challenged the impugned order inter-alia on the grounds that the order is violative of the fundamental rights of the detenue; is vague, cryptic; the order suffers from non-application of mind; the detenue has not been furnished the entire material to enable him to file a representation against his detention; the detenue was in custody when the detention order was issued.
5. Per contra the respondents in their counter affidavit have, while refuting the allegations of the petitioner, stated that the detenue is involved in case FIR Nos. 29/2011 for the commission of offences punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the commission of offences punishable in terms of sections 153, 120-B, 506 RPC and 91/2013 for the commission of offences punishable under sections 188, 148, 149, 336, 307 RPC registered at Police Station Baramulla. The detenue has been furnished the requisite material. The grounds of detention and other allied material, on the basis whereof the detention order has been issued, have been furnished to the detenue. The involvement of the detenue in the acts, for which three FIRs have been registered, has led to the subjective satisfaction of the detaining authority to detain the detenue under preventive detention. The activities of the detenue were found to be highly prejudicial to the security of the state, therefore, preventive detention has been ordered.
6. Heard learned counsel for the parties, perused the detention record and considered the submissions.
7. Learned counsel for the petitioner has mostly laid emphasis on the grounds of non-supply of the entire material on the basis whereof the detention has been ordered thereby preventing the detenue from making an effective representation to the respondents against his detention.
8. It appears from the perusal of the record that the detenue was involved in FIR Nos. 29/2011 for the commission of offences punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the commission of offences punishable in terms of sections 153, 120-B, 506 RPC and 91/2013 for the commission of WP(Crl) No.176/2023 Page 3 of 7 offences punishable under sections 188, 148, 149, 336, 307 RPC registered at Police Station Baramulla. and was under custody at the time when the impugned detention order has been passed.
9. The detention record made available by the learned counsel for the respondents reveals that the detenue has been ordered to be put under preventive detention on the basis of his involvement in case FIR Nos. 29/2011 for the commission of offences punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the commission of offences punishable in terms of sections 153, 120-B, 506 RPC and 91/2013 for the commission of offences punishable under sections 188, 148, 149, 336, 307 RPC registered at Police Station Baramulla, however, the detention order has been admittedly issued in the year 2023 on 8th May i.e twelve, eleven and ten years later than the respective dates of registration of the FIRs despite the detenue being in custody in connection with his involvement in the FIRs supra.
10. The execution report forming part of the detention record would further reveal that the detenue has been provided seven leaves in all comprising detention order (01 leaf); notice of detention (01 leaf); grounds of detention (02 leaves); dossier of detention (Nil); copies of FIR, statement of witnesses and other related relevant documents (03 leaves). As per the showing of respondents themselves the detenue has not been supplied the copy of dossier which is an essential document forming basis of subjective satisfaction of the detaining authority. The non-supply of such an important document has certainly prejudiced the rights of the detenue in as much as the detenue could not make an effective representation against his detention.
11.The Supreme Court in case titled "State of Tamil Nadu vs. Abdullah Kadher Batcha" reported as (2009) 1 SCC 333, has held that non supply of any document is prejudicial to the case of the detenue. It would be WP(Crl) No.176/2023 Page 4 of 7 profitable to reproduce relevant portion of paragraph-7 of the said judgment herein:
"7.... While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced."
12. The detenue has been prejudiced by non-supply of the copy of dossier as the same has been relied upon by the detaining authority and a statutory duty was cast on the detaining authority to make available such document to the detenue to enable him to move an effective representation against his detention. The infraction of statute has again prejudiced the detenue to move a representation against the detention which has consistently been held to be fatal for the prosecution/respondents. In a case titled "Tahira Haris etc. etc. vs. Government of Karnatka" reported as (2009) 11 SCC 438, the Supreme Court has laid down the same principle. It would be profitable to reproduce paragraphs 11 and 12 of the said judgment herein:
"11. More than half a century ago, the Constitution Bench of this Court has interpreted Article 22(5) of the Constitution in Dr. Ram Krishan Bhardwaj v. The State of Delhi and Ors. 1953 SCR 708 observed as under:
"5.......Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the WP(Crl) No.176/2023 Page 5 of 7 grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article
22. That not having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith."
12. The right which the detenu enjoys under Article 22(5) is of immense importance. In order to properly comprehend the submissions of the detenu, Article 22(5) is reproduced as under:
"22.(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
This Article of the Constitution can be broadly classified into two categories: (i) the grounds on which the detention order is passed must be communicated to the detenu as expeditiously as possible and (ii) proper opportunity of making representation against the detention order be provided."
13. In view of the ratio laid down in the judgments supra the Supreme Court has laid much emphasis on the fundamental right of the detenue as envisaged in Section 22 (5) of the Constitution. The Supreme Court has held that an inaction on the part of respondents to violate the safeguards provided by the statute prejudices the rights of the detenue.
14. For all what has been said hereinbefore, the Court is of the considered view that the safeguards provided by the statute have not been complied with in the instant case and the detenue resultantly has been deprived of his right to move a representation against his detention. The impugned order further appears to have been issued on the basis of an activity allegedly done by the accused detenue almost seven/two years before the issuance of the detention order and nowhere do the respondents justify or provide reasons for such delayed issuance of impugned order.
WP(Crl) No.176/2023 Page 6 of 715.The petition succeeds and is allowed as such. The impugned order bearing No. 31/DMB/PSA/2023, dated 08.05.2023, is quashed and the detenue Javaid Ahmad Gojiri S/o Abdul Rehman Gojiri R/o Mohalla Jamia, Baramulla Tehsil/District Baramulla is directed to be released from the preventive custody forthwith if not required in any other case.
16.The detention record be returned to the learned counsel for the respondents against receipt.
17.Disposed of.
(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR:
02.01.2025 "Shaista-PS"
Whether the judgment is reportable: Yes/No. Whether the judgment is speaking: Yes Shaista Rashid Shah I attest to the accuracy and WP(Crl) No.176/2023 authenticity of this document Page 7 of 7 15.01.2025 14:28