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HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 562/2022
Reserved On: 19.04.2024
Pronounced on: 30 . 04.2024
Suhail Ahmad Shah @ Sahil ( Aged 21 Years)
S/O Zahoor Ahmad Shah
R/O Shah Mohalla, Panzinara, Srinagar through his
Father Zahoor Ahmad Shah
…..Petitioner(s)
Through: Mr.R.A.Khan, Advocate.
V/s
1. UT of J&K through Principal Secretary,
Home Department, Civil Sectt; Srinagar.
2. District Magistrate, Srinagar
3. Senior Superintendent Police, Srinagar
4. Superintendent Central Jail Jammu
5. S.P.CID CIK, Srinagar
….. Respondent(s)
Through: Mr.Faheem Shah, GA vice
Mohsin Qadiri,Sr.AAG
CORAM: BLE MR. JUSTICE M.A.CHOWDHARY,JUDGE
HON’
JUDGMENT
1. District Magistrate, Srinagar (
hereinafter called „Detaining Authority‟) in
exercise of powers under Section 8 of the Jammu & Kashmir Public
Safety Act, 1978, passed the detention Order No. DMS/PSA/72/2022
( ) on 27.06.2022, in terms whereof the
for short ‘impugned order’
petitioner namely Suhail Ahmad Shah @ Sahil S/O Zahoor Ahmad Shah
R/O Shah Mohalla Panzinara, Srinagar ) was ordered
(for short ‘detenue’
to be detained and lodged in Central Jail, Jammu with a view to prevent
him from acting in any manner prejudicial to the maintenance of Security
of the State .
WP (Crl) No. 562/2022
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2. The impugned detention order has been challenged through the medium
of the instant petition, being in breach of the provisions of Article 22(5)
of the Constitution of India read with Section 13(1) of the J&K Public
Safety Act, 1978.
3. 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
submitted by the Senior Superintendent of Police concerned. 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 in the language understood by him, has
not been provided to the detenue. It has also been contended that the
petitioner has not been informed before whom he had to make a
representation against his detention. Further it is contended that the
material which formed basis of the grounds of detention has not been
provided to the detenue.
4. The respondents, in their counter affidavit, have disputed the averments
made in the petition and stated that the provisions of J&K Public Safety
Act have been followed. 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 in the language which he fully understood;
that there has been proper application of mind for detaining the detenue
and that the detenue has been provided all the material. The learned
WP (Crl) No. 562/2022
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counsel for the respondents also produced the detention record to lend
support to the stand taken in the counter affidavit.
5. Heard learned counsel for both the sides at length, perused the record and
considered.
6. Learned counsel for the petitioner, while seeking quashment of the
impugned order, projected various grounds but the main ground that has
prevailed during arguments 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.
7. The detaining authority while passing the order of detention had forwarded
the same for execution to the SSP concerned with a direction to give notice
to the detenue on one hand and on the other hand a copy of the
communication to detenue made by the detaining authority directed to be
forwarded to Superintendent Central Jail Jammu, to be communicated to
the detenue, the grounds of detention/Copy of FIR and letter addressed to
the detenue against proper receipt. On perusal of record it has been found
that the execution report has been prepared by one ASI Azhar Khaliq of
Police Station Shalteng that the grounds of detention and other relevant
record has been furnished to the detenue against proper receipt. It is noticed
that the detenue has dilated on a matter with regard to execution of the
detention order and serving all the material which based the detention
order. The execution report reveals that one leaf each of detention order and
notice of detention, two leaves of grounds of detention and one leaf of copy
of FIR, statement of witnesses and other related documents were served
upon the detenue. It appears that the executing officer was not even sure as
to what was being served upon the detenue. The report also reveals that the
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dossier was not supplied to the detenue. It is also to be noted that there was
no FIR registered against the detenue as is revealed from the grounds of
detention, therefore, supplying copy of FIR makes no sense.
8. 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 there is nothing in the said record to show that the
whole of the relevant material has not been supplied to the detenue. The
execution report in the record reveals that the detenue has been supplied
only grounds of detention, detention order and notice of detention. It
appears that the detenue has not been provided copy of the dossier,
Statement of witnesses and other relevant material. Thus, the contention of
the petitioner that whole of the material relied upon by the detaining
authority while framing the grounds of detention, has not been supplied to
him, appears to be well-founded. Obviously, the petitioner has been
hampered by non-supply of the relevant material in making an effective and
meaningful representation against his detention before the concerned
authority/Government.
9. The requirement of law is that whole of the record, on which the detention
order is based, has to be made available to the detenue in the language that
he understands. There is nothing like execution report/Receipt of grounds
of detention on the record to suggest that the whole material relied upon to
base detention has been furnished to the detenu, so as to make an effective
representation. The failure on the part of the detaining authority to supply
material to the detenue renders detention illegal and unsustainable.
WP (Crl) No. 562/2022
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The Hon‟ble Apex Court in the judgment rendered in the case of “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 detenu 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 detenu 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.”
Learned counsel for the petitioner has also placed reliance on cases of
Thahira Haris Etc. v. Government of Karnataka, AIR 2009 SC 2184;
Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass
v. District Magistrate, AIR 1982 SC 1315; and Syed Aasiya Indrabi v.
State of J&K & ors, 2009 (I) S.L.J 219 to buttress his arguments.
10. The detenue in view of the impugned detention order has been shown as
an OGW/LeT/TRF and it has been recorded that he was deeply influenced
by radical ideology and had also come into contract with active terrorists
and OGWs of LeT/TRF (banned Outfits) who motivated him for providing
logistic support. The detenue was also shown to have been bound down in
terms of Section 107/151 Cr.P.C on 24.6.2022, a couple of days before
detention order was passed. The grounds of detention do not specifically
state, in what activities he was involved prejudicial to the security of the
State. The detenue had been shown having radicalized thoughts in short
span of time and that he became staunch OGW of the area, besides
preaching and spreading, propagating terrorist ideology in the area and
motivated youth for joining unlawful activities in the area. Nevertheless
there is no specific instance(s) as to what he had preached or propagated, at
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what time and amongst whom , therefore, the grounds of detention are
general in nature and appears to be bald and vague against which no
prudent man can make an effective and meaningful representation against
his detention. I am fortified to take this view, by the judgments
of the Supreme Court in the case of Jahangir khan Fazal
Khan Pathan vs. Police Commissioner, Ahmadabad,
(1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v.
Police Commissioner, Ahmadabad, AIR 1989 SC 2265.
11. As observed and noticed hereinabove, the detaining authority while
detaining the detenue has been negligent in observing the safeguards as
are available constitutionally and statutorily, by not furnishing whole of
the material/record, on which detention order was based, incapacitated
the detenue to make an effective and meaningful representation. Besides
the detention order is based on vague grounds, which shows non-
application of mind to reach subjective satisfaction for passing the same
to curtail the cherished right of liberty of the detenue. Such grounds and
the material also incapacitated detenue to file representation against his
detention, for revoking the detention. The impugned order thus suffers
from non-application of mind by the detaining authority is not
sustainable and is liable to be quashed.
12. For the foregoing reasons and the law stated hereinabove, this petition is
allowed and detention Order No.DMS/PSA/72/2022 dated 27.06.2022,
passed by District Magistrate, Srinagar is quashed. Respondents, including
Jail Superintendent concerned, are directed to release the detenu forthwith,
provided he is not required in any other case(s). Xerox copy of the
Detention record, as produced, be returned to the learned GA.
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13. Disposed of.
Srinagar
30 .04.2024 ( M. A. CHOWDHARY)
JUDGE
Mujtaba
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
WP (Crl) No. 562/2022
Syed Mujtaba Hussain Razvi
I attest to the accuracy and
authenticity of this document
30.04.2024 15:45