Sr. No. 49
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 110/2024
Muneer Ahmad Petitioner(s)/Appellant(s)
….
Through :- Mr. Gagan Oswal, Advocate
V/s
UT of J&K and Ors.
….Respondent(s)
Through :- Mr. Rajesh Thappa, AAG.
CORAM:
HON’BLE
MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
31.10.2024
ORAL
1.Through the medium of this writ petition, the petitioner prays for
quashment of the Order No.28 of 2024 dated 22.07.2024 issued vide
letter No. 1120-24/DMJ/Judicial/2024-25 ( impugned
for short ‘
) passed by District Magistrate, Jammu - respondent
detention order’
no.2 (for short "detaining authority"), whereby detenu, namely, Muneer
Ahmad S/o Mohd Sadiq R/o Khui Pangali Nagrota, Jammu has been
detained under the provisions of Section 8 of the Jammu and Kashmir
Public Safety Act, 1978 with a view to prevent him from committing
any act which is prejudicial to encroachment of forest land, smuggling
of forest resources and public order.
2. The Detention order dated 22.07.2024, passed by the detaining authority
reads as under:-
Subject : Detention under J&K Publcic Safety Act, 1978
“
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Whereas, I, District Magistrate, Jammu an satisfied that in
order to prevent on the basis of dossier placed before me
by the Divisions Forest Officer, Jammu Forest Division,
vide his No. DFO/j/1435-37 dated 27.06.2024 am satisfied
that with a view to prevent Munner Ahmed S/o Mohd
Sadiq R/o Khuli Pangali Nagrota Jammu from acting in
any manner which is prejudicial to encroachment of forest
land, smullging of forest resources and public order, it is
necessary so to do
Now, therefore, in exercise of power conferred by
clause (a-1) of Sub Section (1) of Section 8 of J&K Public
Safety Act, 1978, I District magistrate, Jammu hereby
direct that the said Munner Ahmad S/o Mohd Sadiq R/o
Khui Pangali Nagrota jammu be detained and loged in
central jail Kot bhalwal Jammu.
3. Quashment of the impugned detention order is sought on the grounds
that the petitioner/detenu has been implicated in a false and frivolous
cases; the petitioner/detenu made an representation to the respondents
for revoking of the impugned detention order, but the respondents
refused to consider the said representation and the impugned detention
order has not been revoked; the ground for which he has been detained
were not read or explained to him in the language which he
understands; copies of the documents relied upon by the respondents
while passing impugned detention order have not been provided to the
petitioner/detenu in the language which he understand rdu
i.e., ‘U ’ and
ojjari languages; petitioner/detenu has been deprived of making
‘G ’
effective representation, the impugned detention order, as such, passed
by the detaining authority is illegal and deserves to be quashed;
4. Learned counsel for the petitioner/detenu further submits that
petitioner/detenu has been detained in order to prevent him from
committing any act which is prejudicial to encroachment of forest land,
smuggling of forest resource without there being any material to support
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such allegations, report of the Forest Officer on the basis of which he
has been detained was not provided to him. He was only provided the
order of detention without any FIR.
5. Learned counsel for the petitioner further submits that perusal of the
impugned detention order passed under Section 8 (1) (a) of J&K Public
Safety Act, 1978, shows total non- application of mind on the part of
detaining authority while passing the said order of detention, as such, in
that view of matter, impugned detention order is vitiated. He further
submits that the grounds of detention nowhere mentions disturbance to
the public order when his detention has been ordered not only under
Section 8(i) (a) but also 8(a-1)(i) of the Act, as such, the grounds of
detection alleged by the respondents are not sufficient to pass such an
detention order against the petitioner/detenu.
6. Per contra learned counsel for the respondents submits that there is no
illegality in passing of the impugned detention order. He submits that
sufficient ground were existing which have been taken into
consideration by the detaining authority while passing the detention
order. He further submits that it was only after perusal of the material
on record and other connected documents in respect of detenu the
impugned detention order has been issued by detaining authority with
proper application mind.
7. When it was pointed out to the learned counsel respondents that the
order of detention shows that detention has been passed in order to
prevent the petitioner/detenu from acting in any manner prejudicial to
encroachment of the forest land, smuggling of forest resources and
public order, he submitted that after passing of the order of detention
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dated 22.07.2024, a corrigendum was issued on 29.07.2024, i.e, after
impugned detention order was executed and petitioner/detenu was
lodged in District Jail, Kot-Bhalwal, Jammu and he was provided with
the copy of the order of detention before corrigendum was issue, i.e.,
after the detenu was detained. The order of corrigendum has been issued
by the District Magistrate, Jammu after passing of the order of
detention, which makes it clear that the impugned detention order dated
22.07.2024, by virtue of which petitioner/detenu was detained was
passed by the detaining authority without proper application of mind.
8. It appears that the District Magistrate, Jammu while passing the
impugned detention order dated 22.07.2024 has not gone through the
grounds of detention nor has he gone through the provisions contained
which authorize him to pass such order. Therefore, the order of
detention makes it clear that the District Magistrate, Jammu at the time
of passing the impugned detention order was of the opinion that the Act
of the petitioner/detenu was prejudicial to the encroachment of the
forest land, smuggling of forest resources and public order.
9. Perusal of the record produced by Mr. Rajesh Kuma Thappa, learned
AAG nowhere shows that the petitioner/detenu was provided documents
which were relied upon by the respondents while passing the impugned
detention order, as such, he was not in a position to make an effective
and meaningful representation either to the detaining authority or to the
Government against his detention because he was not provided the
material by the detaining authority, thus, there is violation of provisions
of Article 22 (5) of the Constitution of India.
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10. The material, relied upon by detaining authority, thus, assumes
significance in the facts and circumstances of the case. It needs no
emphasis, that the detenu cannot be expected to make a meaningful
exercise of his Constitutional and Statutory rights guaranteed
under Article 22(5) of the Constitution of India and Section 13 of the
J&K Public Safety Act, 1978, unless and until the material on which the
detention order is based, is supplied to the detenu. It is only after the
detenu has all the said material available that he can make an effort
to convince the detaining authority and thereafter the Government that
their apprehensions concerning the activities of detenu are baseless and
misplaced. If detenu is not supplied the material, on which detention
order is based, he will not be in a position to make an effective
representation against his detention order. Failure on the part of
detaining authority to supply the material relied at the time of making
the detention order to detenu, renders detention order illegal and
unsustainable. While saying so, I draw the support from the law laid
down in Thahira Haris Etc. 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; Sofia
Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC
3051; and Syed Aasiya Indrabi v. State of J&K & others, 2009 (I) S.L.J
219.
11. For the foregoing reasons, the petition is disposed of and detention
Order No. 28 of 2024 dated 22.07.2024 issued vide letter No. 1120-
24/DMJ/Judicial/2024-25 passed by District Magistrate, Jammu -
respondent no.2, is quashed. Respondents are directed to release the
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petitioner/detenu Muneer Ahmad S/o Mohd Sadiq R/o Khui Pangali
Nagrota, Jammu forthwith from the preventive custody, provided he is
not required in any other case.
12. Record has been returned back to Mr. Rajesh Kumar Thappa, learned
AAG
13. The instant petition is, accordingly, disposed of along with connected
CM(S).
(Vinod Chatterji Koul)
Judge
Jammu:
31.10.2024
Javid Iqbal
Javid Iqbal
2024.11.05 15:04
I attest to the accuracy and
integrity of this document