Jammu and Kashmir High Court
WP(Crl)/108/2020 of OWAIS AHMAD BHAT Vs UNION TERRITORY OF J AND K AND ANR. (HOME DEPARTMENT) on 31 December 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 20.12.2021 Pronounced on 31.12.2021 WP(Crl.) No.108/2020 OWAIS AHMAD BHAT ...PETITIONER(S) Through: - Mr. R. A . Jan, Sr. Adv. with Mr. Aswad Attar, Advocate. Vs. UNION TERRITORY OF J&K &anr. …RESPONDENT(S)
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Reserved on: 20.12.2021 Pronounced on 31.12.2021
WP(Crl.) No.108/2020
OWAIS AHMAD BHAT
...PETITIONER(S)
Through: - Mr. R. A. Jan, Sr. Adv. with Mr. Aswad Attar, Advocate.
Vs.
UNION TERRITORY OF J&K &anr. …RESPONDENT(S)
Through: - Mr. Mir Suhail, AAG
CORAM:HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
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JUDGMENT
1) Challenge in this petition is thrown to the order No.12/DMP/PSA/20 dated 07.07.2020, issued by District Magistrate, Pulwama (for brevity “Detaining Authority”) whereby Shri Owais Ahmad Bhat son of Habibullah Bhat resident of Arihal Tehsil & District Pulwama (for short “detenu”) has been placed under preventive detention and directed to be lodged in Central Jail, Srinagar
2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been also urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. It has also been contended that the petitioner has not been informed as to before which authority he had to make a representation.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.
4) I have heard learned counsel for parties and I have also gone through detention record.
5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main ground that has prevailed during discussion is that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been supplied to him.
6) On perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as the said record suggests that the whole of the relevant material has not been supplied to the detenue. The execution report in the record indicates that the detenue has been supplied 04 leaves comprising copy of warrant/notice/ and grounds of detention. It appears that copy of the dossier and copy of the FIR including documents relating to the FIR, reference whereof has been made in the grounds of detention, have not been supplied to the detenue. This goes to support the contention of the petitioner that he has not been supplied whole of the relevant material. Obviously, the petitioner has been hampered by non-supply of the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board.
7) Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti
alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440.
8) The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention is, therefore, unsustainable. Accordingly, the same 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.
9) The record, as produced, be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 31.12.2021“Bhat Altaf, PS”Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No