Manzoor Ahmad Naikoo v. Union Territory of J&K and anr.

Through: Mr. Asif Maqbool, Dy. AG CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT

1. Through the medium of this writ petition, Order No. 21/DMP/PSA of 2022 dated 18.04.2021, passed by District Magistrate, Pulwama whereby detenu, namely, Manzoor Ahmad Naikoo S/o Ghulam Qadir Naikoo R/o Beigpora Tehsil Awantipora District Pulwama, has been placed under preventive detention with a view to prevent him from indulging in the activities which are prejudicial to the security of the State, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein. 2. I have heard learned counsel for the parties and considered the matter. 3. The main grounds, on which the detention is sought to be quashed, are that the grounds of detention are vague, indefinite and no prudent man can make an effective representation against these allegations inasmuch as case mentioned in grounds of detention has no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention; that the material relied upon including dossier by the detaining authority to pass detention order has not been furnished to the detenu to enable him to make an effective representation against his detention, as a consequence of which impugned order of detention is liable to be quashed. 2

4. Respondents have filed reply/counter affidavit, insisting therein that there are very serious allegations against detenu as he has always been in the lead role in anti-social and anti-national activities, which are detrimental to the sovereignty and integrity of the country and, therefore, his remaining at large is a threat to the security of the State. The activities narrated in the grounds of detention have been reiterated in the reply/counter affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 5. Taking into account the rival contentions of parties and submissions made by learned counsel for parties, it would be relevant to go through the detention record produced by counsel for respondents. The detention record, inter alia, contains “Execution Report”. It would be advantageous to reproduce relevant portion of Execution Report hereunder: “The detention Order (01 leaf), Notice of detention (01 leaf), grounds of detention (02 leaves), Dossier of detention (Nil) Copies of FIR, Statements of witnesses and other related relevant documents (Nil) (Total 04 Leaves) have been handed over to the above said detune…” Thus, it is unambiguously clear and evident from perusal of Execution Report that only four leaves have been given to detenu. 6. Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police, Awantipora, vide no. Conf/PSA/2022/227-30 dated 07.04.2022; detaining authority was satisfied that with a view to prevent detenu from acting in any manner prejudicial to the security of the State, it was necessary to detain him under necessary provisions of law. So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. The grounds of detention, when looked into, gives reference to case FIR No. 28/2022 U/S 307 IPC, 3/4 Exp. Sub Act, 16, 18, 20, 23, 38 and 39 to have been registered against detenu at P/S Awantipora. Involvement of detenu in the aforesaid case appears to have weighed with detaining authority, while 3 making detention order. The record, as noted above, does not indicate that copies of aforesaid First Information Report, statements recorded under Section 161 Cr. PC and other material collected in connection with investigation of aforesaid case, was ever supplied to the detenu. The above material, thus, assumes significance in the facts and circumstances of the case. 7. It needs no emphasis, that 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 detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material, relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. In this regard, I may draw support from the law laid down in the cases of 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 & ors, 2009 (I) S.L.J 219.

8. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has held that it is only the procedural requirements, which are the only safeguards available to the detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of the detaining authority. In the present case, the procedural requirements, as discussed above, have not been followed and complied by the respondents in letter and spirit and resultantly, the impugned detention needs to be quashed. 4

9. Perusal of the detention record, produced by counsel for respondents, reveals that a representation was made by father of detenu to detaining authority for revisiting/reviewing the detention order, which representation, in terms of communication no.DCP/PA/22/697-700 dated 25.04.2022 has been rejected. Perusal of the said communication reveals that detaining authority has informed that it was on the basis of “grounds of detention” placed before him by Superintendent of Police, Awantipora that detenu was taken in preventive detention. This shows that grounds of detention have not been prepared by detaining authority himself but by Superintendent of Police concerned and, therefore, reflects non-application of mind on the part of detaining authority. Resultantly, impugned order of detention is liable to be quashed. 10. Based on the above discussion, the petition is disposed of and Detention Order no. 21/DMP/PSA/2022 dated 08.04.2022, issued against Manzoor Ahmad Naikoo S/o Ghulam Qadir Naikoo R/o Beigpora Tehsil Awantipora District Pulwama is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. 11. Detention record be returned to counsel for respondents (Vinod Chatterji Koul) Judge Srinagar 18.10.2022 (Qazi Amjad Secy.) Whether approved for reporting? Yes/No