GHULAM NABI MIR v. UNION TERRITORY OF J&K & Ors.

Mr. Sajad Ashraf, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) By the instant petition, veracity and legality of the detention order No.DMB/PSA/12/2021 dated 22.02.2021, issued by District Magistrate, Srinagar (for brevity “detaining authority”) has been challenged. In terms of the aforesaid order, Ghulam Nabi Mir son of Mohammad Sultan Mir resident of Sadrabal, Hazratbal, Srinagar (for short “detenue”) has been placed under preventive detention and lodged in Central Jail, Srinagar. 2) The 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 vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards 2 WP(Crl.) No.72/2021 have not been complied with in the instant case. It has been further urged that there has been non-application on the part of detaining authority while passing the impugned detention order, inasmuch as there is no mention in the grounds of detention regarding the fact that the detenue had already been admitted to bail in the FIR, reference whereof has been made in the grounds of detention. It has further been contended that whole of the material forming basis of the grounds of detention has not been furnished to the detenue which has disabled him from making an effective representation against his detention. 3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of 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. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record. 4) I have heard learned counsel for parties and perused the detention record. 5) 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: 3 WP(Crl.) No.72/2021 (I) That the detenue was not furnished with whole of the material so to make an effective representation against his detention. to enable him (II) That there has been non-application of mind on the part of the detaining authority as the detenue had already been admitted to bail in FIR No.02 for offences under Section 307, 120-B IP read with Section ¾ Exp. Substances Act and Sections 16, 18, 19 UA(P) Act of P/S Nigeen, but this fact has not been mentioned in the grounds of detention. 6) A perusal of the detention record reveals that the petitioner has received four leaves comprising PSA warrant (one leaf), notice (one leaf), grounds of detention (one leaf) and copy of FIR (one leaf), in token whereof, his signatures have been obtained. This document forms part of detention record. Nothing has been brought on record to indicate that the copy of the police dossier and copies of the statements of witnesses recorded in the FIR have been furnished to the detenue. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue 7) Apart from the above, if we have a look at the grounds of detention, it bears reference to FIR No.02/2020 for offences under Section 307, 120-B IP read with Section ¾ Exp. Substances Act and Sections 16, 18, 19 UA(P) Act of P/S Nigeen. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded under Section 161/164 of the Cr. P. C during investigation of aforesaid FIR as well as the other material on the basis of which petitioner’s involvement in the said FIR is shown, 4 WP(Crl.) No.72/2021 particularly because the petitioner is not nominated in the said FIR. 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 a 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. 8) 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 detention order is based, is supplied to him. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors, (AIR 2009 SC

2184. 9) Next it has been contended that the impugned detention order suffers from non-application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had been admitted to bail in FIR No.02/2020 in terms of order dated 21.07.2020 passed by learned Special Judge Designated under NIA Act, Srinagar. A copy of the order 5 WP(Crl.) No.72/2021 issued by the said Court in this regard has been placed on record by the petitioner. 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 vs. State of Maharashtra &Ors., AIR 1987 SC 137. 10) Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 11) The detention record be returned to the learned counsel for the respondents. SRINAGAR 08.07.2022 “Bhat Altaf, PS” (Sanjay Dhar) Judge Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No