Jammu & Kashmir High Court - Srinagar Bench
Fahim Ahmad Check vs Union Territory Of J&K & Anr on 24 July, 2023
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 327/2022
Reserved on: 12.07.2023
Pronounced on : 24.07.2023
Fahim Ahmad Check
...Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. District Magistrate Shopian- respondent No.2 (for short 'detaining authority') in exercise of powers conferred on him under Section 8(a) of the J&K Public Safety Act, 1978, passed the detention order No. 109/DMS/PSA/2022 dated 09.04.2022 (for short 'impugned order'), in terms whereof the petitioner namely Fahim Ahmad Check S/O Mohd Yaqoob Check R/O Nowgam Shopian (for short 'detenue'), has been detained with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the UT/Country.
2. 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. It is being pleaded in the petition that the detenue was arrested by the police without any reason and justification and was placed in illegal confinement. It is Page |2 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 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, which is pre-requisite before passing any detention order. 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; that the 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 UT, 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 Page |3 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 FIR in the grounds of detention and 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. In rebuttal, learned GA 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.
6. Heard, perused the detention record and considered.
7. On perusal of the grounds of detention, it transpires that the detaining authority received the dossier from Sr. Superintendant of Police Shopian, wherein it was stated that the detenue has studied upto class 3rd and thereafter got admission in Siraj ul Uloom Imamsahib Shopian and passed class 6th. Thereafter the detenue got admission in Govt. High School Nowgam and studied up to class 10th and left the studies in midway and started working as Auto Driver. Soon thereafter he developed his contacts with terrorists and used to work as OGW of LeT/TRF outfits and also motivated the youth of his area for indulging in anti national and anti social activities and is the key motivator who always motivates the youth to Page |4 indulge in militancy. The grounds of detention further reveal that the detenue has emerged to be a national security suspect.
8. The detenue has been shown as a security risk mainly on the ground that he was involved in antinational and anti social activities, however, no specific allegations against the detenue have been unfolded.
9. 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 to make representation against his detention, 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.
10. 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 the 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 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."
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11. 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.
12. In the afore-stated backdrop, this petition is allowed. Impugned Order of detention No. 109/DMS/PSA/2022 dated 09.04.2022 passed by District Magistrate Shopian, is, as such, quashed. The detenue namely Fahim Ahmad Check S/O Mohd. Yaqoob Check R/O Nowgam Tehsil and District Shopian, is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
13. Disposed of, accordingly.
( M. A. CHOWDHARY ) JUDGE Srinagar 24.07.2023 Muzammil. Q Whether the order is reportable: Yes / No