Jammu & Kashmir High Court - Srinagar BenchSajad Ahmad Khan vs Union Territory Of J&K & Ors on 26 September, 2023Author:Sanjay DharBench:Sanjay DharHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                     AT SRINAGAR\n                                                     Reserved on: 28.08.2023\n                                                  Pronounced on:. 26.09.2023\n\n\n                          WP(Crl.) No.176/2022\n\nSAJAD AHMAD KHAN                                  ...PETITIONER(S)\n       Through: - Mr. Z. A. Qureshi, Sr. Advocate, with\n                      Ms. Razia Amin, Advocate.\n\nVs.\n\nUNION TERRITORY OF J&K & ORS.                      ...RESPONDENT(S)\n       Through: -     Mr. Furqan Sofi, GA, vice Mr. Jahangir Ahmad Dar, GA\n\n\nCORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE\n\n\n                                   JUDGMENT1)     Impugned in this petition is order No.44/DMB/PSA/2022 dated\n\n09.04.2022, issued by District Magistrate, Baramulla (for brevity\n\n"detaining authority"). In terms of the aforesaid order, Sajad Ahmad\n\nKhan son of Nazir Ahmad Khan resident of Mohalla Jami Tehsil\n\nBaramulla District Baramulla, (for short "detenu") has been placed\n\nunder preventive detention and lodged in Central Jail Kotbhalwal,\n\nJammu.2)     The petitioner has contended that the detaining authority has\n\npassed the impugned detention order mechanically without application\n\nof mind, inasmuch as the procedural safeguards have not been\n\ncomplied with in the instant case. It has been further urged that whole\n\nof the material which formed basis of the grounds of detention and theWP(Crl) No.176/2022                                                 Page 1 of 6consequent order of detention has not been provided to the detenue and\n\nthat the grounds of detention are vague, non-existent and stale.3)     The respondents, in their counter affidavit, have disputed the\n\naverments made in the petition and insisted that the activities of\n\ndetenue are highly prejudicial to the security of the State. It is pleaded\n\nthat whole of the material was handed over to the detenue and the same\n\nwas read over and explained to him; that the grounds urged by the\n\npetitioner are legally misconceived, factually untenable and without\n\nany merit and that the impugned detention order has been passed\n\nstrictly in accordance with law occupying the field. The order has been\n\nissued validly and legally. The respondents have placed reliance on\n\nvarious judgments of the Supreme Court includingHaradhan Saha v.\n\nState of W.B(1975) 3 SCC 198. In support of their stand taken in the\n\ncounter affidavit, the respondents have also produced the detention\n\nrecord.4)     I have heard learned counsel for parties and perused the material\n\non record.5)     Learned counsel for the petitioner, while seeking quashment of\n\nthe impugned order, projected various grounds but his main thrust\n\nduring the course of arguments was on the following grounds:(I)    That the detenue's right of making an effective representation\n              against his detention has been violated as whole of the\n              material, on the basis of which the grounds of detention have\n              been formulated, has not been supplied to him.WP(Crl) No.176/2022                                                 Page 2 of 6(II)   That the allegations made against the petitioner in the grounds\n              of detention are vague on the basis of which no effective\n              representation could have been made by the petitioner against\n              the impugned order of detention.6)     The first ground projected by the learned counsel for the\n\npetitioner that the detenue has been disabled from making an effective\n\nrepresentation against the order of detention as whole of the material,\n\nwhich formed basis of the grounds of detention and the consequent\n\norder of detention, has not been furnished to him, appears to have\n\nsubstance. A perusal of the detention record reveals that the petitioner\n\nhas been provided copies of detention order (01 leaf), notice of\n\ndetention (01 leaf), grounds of detention (02 leaves), dossier of\n\ndetention (Nil), copies of FIR, statements of witnesses and other\n\nrelevant documents (03 leaves), (total 07 leaves). If we have a look at\n\nthe grounds of detention, it bears reference to three FIRs viz. FIR\n\nNos.165/2013, 199/2016 and 52/2017 of P/S Baramulla. It was\n\nincumbent upon respondents to furnish not only the copies of the FIRs\n\nbut also the statements of witnesses recorded during investigation of\n\nthe said FIRs and other material on the basis of which petitioner's\n\ninvolvement in these FIRs is shown. All this material would run in\n\ndozens of pages and it is impossible that all this material would be\n\ncovered in only three leaves. Even the copy of the dossier of detention\n\nhas not been supplied to the petitioner.7)     Thus, contention of the petitioner that whole of the material\n\nrelied upon by the detaining authority, while framing the grounds of\n\ndetention, has not been supplied to him, appears to be well-founded.WP(Crl) No.176/2022                                                  Page 3 of 6Obviously, the petitioner has been hampered by non-supply of these\n\nvital documents in making an effective representation before the\n\nAdvisory Board. Thus, vital safeguards against arbitrary use of law of\n\npreventive detention have been observed in breach by the respondents\n\nin this case rendering the impugned order of detention unsustainable in\n\nlaw.8)     It needs no emphasis that the detenue cannot be expected to\n\nmake an effective and purposeful representation which is his\n\nconstitutional right guaranteed underArticle 22(5)of the Constitution\n\nof India, unless and until the material, on which the detention is based,\n\nis supplied to the detenue. The failure on the part of detaining authority\n\nto supply the material renders the detention order illegal and\n\nunsustainable in law. While holding so, I am fortified by the judgments\n\nrendered inSophia Ghulam Mohd. Bham V. State of Maharashtra\n\nand others(AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of\n\nDelhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC\n\n544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home,\n\n1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of\n\nKarnataka & Ors. (AIR 2009 SC 2184).9)     Next it has been contended by learned counsel for the petitioner\n\nthat the allegations made in the grounds of detention against the\n\npetitioner are vague, as such, it was not possible for the petitioner to\n\nmake an effective representation against the impugned order ofWP(Crl) No.176/2022                                               Page 4 of 6detention, as a result of which his valuable statutory and constitutional\n\nright stands violated.10)    If we have a look at the grounds of detention, it is mentioned that\n\nthe petitioner is in touch with the terrorists of LeT and is implementing\n\ntheir instructions on ground for carrying out anti-national activities. It\n\nhas been further alleged that the petitioner is indulging in anti-national\n\nactivities, which includes transportation of the militants and their\n\nassociates from one place to another, transportation of arms and\n\nammunition and motivating the youths to join militant ranks.11)    It is not discernable from the grounds of detention as to with\n\nwhom the petitioner is in touch with and who is imparting instructions\n\nto him. The identity of the militants alleged to have been transported by\n\nthe petitioner is also not mentioned in the grounds of detention, nor the\n\nidentity of the places to which these militants have been transported by\n\nthe petitioner is mentioned in the grounds of detention. Even the\n\nparticulars of the dates and places are not mentioned in the grounds of\n\ndetention. Thus, the allegations made in the grounds of detention are\n\nvague and lacking in material particulars. On the basis of such vague\n\nallegations, the detenue could not have made an effective\n\nrepresentation against his detention. Therefore, his right guaranteed\n\nunderArticle 22 (5)of Constitution of India stands violated in the\n\ninstant case, rendering his detention illegal and unsustainable in law.12)    Viewed thus, the petition is allowed and the impugned order of\n\ndetention is quashed. The detenue is directed to be released from theWP(Crl) No.176/2022                                               Page 5 of 6preventive custody forthwith provided he is not required in connection\n\nwith any other case.13)     The detention record be returned to learned counsel for the\n\nrespondents\n\n\n                                                      (Sanjay Dhar)\n                                                           Judge\n\nSRINAGAR\n26.09.2023\n"Bhat Altaf, PS"Whether the order is speaking:     Yes/No\n                   Whether the order is reportable:   Yes/NoWP(Crl) No.176/2022                                              Page 6 of 6