SHOIB RAMZAN TANTRAY v. UT OF J&K & Ors

The petitioner has challenged detention order bearing No.09/DMB/PSA/2023 dated 23.02.2023, issued by District Magistrate, Baramulla, in exercise of powers conferred by clause (a) of Section 8 of the J&K Public Safety Act, 1978, whereby the detenue, namely, Shoib Ramzan Tantry has been placed under preventive detention so as to prevent him from indulging in the activities which are prejudicial to the security of the State. 2) It has been contended by the petitioner that the impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that there 2 WP(Crl) No.116/2023 has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in one of the FIRs mentioned in the grounds of detention but the said fact is not mentioned in the grounds of detention. 3) The respondents, in their counter affidavit, have contended that none of the legal rights of the petitioner have been infringed or violated. It has been further contended that the activities of the detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It has been further contended that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is also averred in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments, was on the following grounds: (i) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.210/2021 3 WP(Crl) No.116/2023 registered with P/S Sopore, but this fact has not been mentioned in the grounds of detention. (ii) That whole of the material that formed basis of the grounds of detention has not been supplied to the petitioner, thereby violating his right of making an effective representation against his detention. 5) In rebuttal, learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue is a habitual criminal, inasmuch he is involved in various criminal acts and, as such, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 6) So far as the first ground of challenge is concerned, from a perusal of the material available on file, the ground regarding non-application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.210/2021 registered with P/S Sopore in terms of the order passed by the court of competent jurisdiction. The petitioner has placed on record a copy of order dated 11.02.2023 passed by learned Chief Judicial 4 WP(Crl) No.116/2023 Magistrate, Baramulla (H.Q. Sopore), whereby he has been enlarged on bail in a case arising out of FIR No.210/2021 for offences under Section 307, 120-B IPC and 7/27 Arms Act. The non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court rendered in the case of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137. 7) So far as the next ground of challenge is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 25.02.2023. Report of the Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of the petitioner and according to it, copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (02 leaves), copies of FIR, statements of witnesses and other related relevant documents (04 leaves), total 10 leaves, have been supplied to him. 8) If we have a look at the grounds of detention, it bears reference to as many as four FIRs viz. FIR Nos.210/2021 of P/S Sopore, 50/2018 of P/S Bomai, 109/2021 of P/S Sopore and 163/2021 of P/S Sopore. It was incumbent upon the respondents to furnish not only copies of the FIRs 5 WP(Crl) No.116/2023 but also the statements of witnesses recorded during investigation of the said FIRs and other material on the basis of which petitioner’s involvement therein is shown, which has not been done. All this material would run in dozens of pages and it is impossible that all this material would be covered in only four leaves. Thus, 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 these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 9) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors 6 WP(Crl) No.116/2023 (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. 10) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 11) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 21.02.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document

21.02.2025 12:41