S. No. 103
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 543/2022
Showkat Ahmad Beigh (age 30)
…Petitioner(s)
S/o Abdul Majeed Beigh.
R/o Budergund Ganderbal.
District Ganderbal.
Through his father namely Abdul Majeed Beigh.
Through: Mr. Lone Altaf, Advocate.
Vs.
1) Union Territory of J&K ...Respondent(s)
through Principal Secretary to Home Department, Civil
Secretariat, Srinagar/Jammu.
2) District Magistrate, Ganderbal.
Through: Mr. Jehangir Ahmad Dar, GA.
CORAM:
MR JUSTICE JAVED IQBAL WANI, JUDGE
HON’BLE
O R D E R
31.05.2024
(ORAL)
1. The petitioner in the instant petition seeks quashment of detention
order No. 16-DMG-PSA-2022 dated 25.06.2022 (hereinafter for short
the impugned order) passed by respondent 2 (hereinafter for short the
detaining authority) under and in terms of the J&K Public Safety Act,
1978 (for short the Act of 1978) on the grounds that the detenue came
to be implicated falsely in FIR No.59/2022 for commission of
offences under Sections 147, 148, and 207 RPC registered with Police
Station Ganderbal on 08.06.2022 and thereafter granted bail by the
st
Court of Judicial Magistrate 1 Class on 18.06.2022 i.e. before
passing of the impugned order which fact was not taken into
consideration by the detaining authority and had instead shown
complete non-awareness about the said fact and that the grounds of
detention are verbatim of the dossier drawn and prepared by the
sponsoring agency suggesting that the detaining authority has failed to
draw its subjective satisfaction in the matter and pass detention of the
detenue independently.
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2. Reply to the petition has been filed by respondents. wherein the
petition is being opposed inter alia on the grounds that the preventive
detention of the detenue has been resorted to on account of his
activities after complying with and fulfilling all necessary, statutory
and Constitutional requirements.
Heard counsel for the parties and perused the record.
3. Perusal of the record indisputably demonstrate that the detenue has
been bailed out in the FIR no. 59/2022 on 18.06.2022 before passing
of the impugned order of detention by the competent court about
which fact the sponsoring as well as the detaining authority seemingly
were oblivious suggesting thus, patent non-application of mind on the
part of the detaining authority rendering the impugned order illegal.
A deeper and closer examination of the record also tends to
show that the grounds of detention are in essence a replica of dossier
drawn and prepared by the sponsoring agency suggesting non-
application of mind on the part of the detaining authority on this count
as well. In this regard the judgment of the Apex Court passed in case
titled as AIR
“Jai Singh and Ors Vs. State of J&K” reported in
1985 SC 764, and
“Mohd Maqbool Itoo Vs. State and Ors”
reported in 2010 (3) JKJ 700, the Apex Court has ruled out that
unawareness of the detaining authority about the grant of bail to the
detenue in the FIR.
4. Besides record further reveals that the detenue has been provided
below mentioned material referred to and relied upon by the detaining
authority being 01 leaf of detention order, 01 leaf of notice of
detention, 02 leaves of ground of detention, 04 leaves of dossier and
02 leaves of copies of FIR, statement of witnesses and other relevant
documents. None of the statement of witnesses claimed to have been
furnished to the detenue pertaining to FIR in question or the other
relevant documents referred in the receipt obtained from the detenu
are available in the said record. Non-furnishing of the entire relevant
material referred to and relied upon by the detaining authority has
been held to be gross breach of Constitutional guarantee provided
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under Article 22(5) of the Constitution, rendering the detention order
bad in law as the non-furnishing of the entire material relied upon by
the detaining authority deprives the detenue of making an effective
representation against his detention.
5. Viewed thus, for the aforesaid reasons, the petition is allowed as a
consequence whereof the impugned order No. 16-DMG-PSA-2022
dated 25.06.2022 is quashed and the respondents including the
concerned jail authority consequently are directed to release the
detenue forthwith from the preventive custody provided the detenue is
not required in any other case.
6. Record produced by counsel for the respondents is returned to him in
the open Court.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
31.05.2024
Ishaq
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