Sahil Farooq Gojree v. Union Territory of JK & Ors.

WP (Crl) 144/2021 Page 2 of 6 c) That the detenue has not been provided the material forming basis of the detention order like the copy of FIRs, statement recorded under section 161 of CrPC, seizure memo; copy of dossier etc, to make an effective representation against his detention order; d) That the grounds of detention have not been furnished to the detenue in a language he understands; e) That the detenue neither applied for nor was he entitled to be granted bail as the detenue was alleged to be involved under ULPA and the detaining authority despite knowledge of the custody of the detenue has not mentioned this important fact nor were there any compelling reasons to pass the detention order in the given circumstances, as sch, on this ground, the detention order suffers of non-application of mind by the detaining authority; f) That the alleged activity attributed to the detenue as per grounds of detention has taken place in the year 2020 and thereafter, no fresh activity has been attributed to the detenue, however, the detention order has been passed on 22.02.2021 i.e. after a delay of more than 01 year from the date of last alleged activity, the delay between the activity and order of detention has snapped the proximity of the order with its object and on the ground of this delay, the detention order is unreasonable and unjustified; g) That the detention order has been passed on 22.02.2021 however, it has been executed in the month of September 2021 WP (Crl) 144/2021 Page 3 of 6 i.e. after a delay of more than three months, despite the fact that the detenue was available for execution and was not absconding in any manner whatsoever. The delay in execution of the detention order has rendered the detention illegal and unconstitutional and deserves to be quashed; h) That the detenue is not an English literate person and understands only Kashmiri/Urdu language but the order of detention is in English and, no translated script in Kashmiri/Urdu was furnished to the detenue nor was the grounds read over and explained to him in the language he understands so that he can make effective representation; 3/- Pursuant to notice, respondents appeared through their learned counsel and filed the counter affidavit stating therein that the detention order is well founded, in fact and law, and seek dismissal of the Habeas Corpus Petition. 4/- Heard learned counsel for the parties and perused the records. 5/- Learned counsel for petitioner submitted that there was no material before the detaining authority to pass the detention of the detenue and in absence of relevant material the detention order is passed on mere ipsi dixit of detaining authority, rendering the same as bad in law. 6/- The learned counsel for petitioner further submitted that the detenue has not been provided the material referred upon in the grounds of detention resultantly the right of making effective representation against the impugned order of detention, as enshrined under Article 22 (3) of the Constitution, has been violated. WP (Crl) 144/2021 Page 4 of 6 7/- The learned counsel for the petitioner would further submit that there is no explanation coming forth from the respondents as regards the delayed execution of the impugned detention order which renders the order as bad in law, therefore, deserves to be quashed. 8/- Mr. Sajad, learned Government Advocate, on the other hand, submitted that the impugned order of detention is well founded and legally quite sound. He submitted that the detenue has been provided the material relied upon by the detaining authority while issuing the impugned detention order. 9/- He further submitted that the detenue has also been informed about his right of making representation against his detention. He submitted that the detaining authority has fully applied its mind while issuing the detention order and there is nothing on record to controvert it. In support of his submissions learned counsel for respondents referred to and relied upon the law laid down in (1975) 3 SCC 198 10/- 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 the detenue was not furnished the material in its entirety to enable him to make an effective representation against his detention. (II) That an unreasonable and unexplained delay has occasioned in execution of the impugned detention order rendering it bad in law. 11/- It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenue. Thus, contention of the learned counsel for the petitioner that entire material, relied upon by the Detaining Authority, while framing the grounds of detention, has not been supplied to the petitioner, appears to be well-founded. Obviously, WP (Crl) 144/2021 Page 5 of 6 the petitioner has been deprived, by non-supply of these vital documents, in making an effective representation before the Advisory Board. 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. 12/- 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. 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). 13/- Another important plea that has been raised by the petitioner is about the delayed execution of the impugned order. It is specifically averred in the petition that there has been an unexplained delay for execution of the impugned detention order. The respondents do not deny such allegation, therefore, the ground projected by the petitioner assumes importance as the detention order is shown to have been issued on 22.02.2021 and executed in the month of September, 2021, i.e. after a period of almost seven months. The delay in the execution of the impugned detention order is fatal for the case built against the detenue by the respondents as it suggests that there were no compelling reasons for detaining the detenue under preventive custody and could have probably been dealt with under substantive laws of the land as no individual, who is projected and believed to be WP (Crl) 144/2021 Page 6 of 6 a threat to the security of the State could not have been allowed to move freely for over a period of six months even after the order of detention is issued against him. I am supported in my view by the case law reported as AIR 1999 SC 2622 titled Manju Ramesh Nahar v Union of India and others. 14/- Viewed thus, the petition is allowed and the impugned order of detention bearing No. DMS/PSA/10/2021 dated 22.02.2021, wrongly mentioned as 22.08.2021 by the petitioner, is quashed. The detenue namely Sahil Farooq Gojree Son of Farooq Ahmad Gojree resident of Makhdoomi Kocha, S. R. Gunj, at present Ellahi Bagh, Soura, Srinagar, is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 15/- The detention record be returned to the learned counsel for the respondents against receipt. Srinagar 09.11.2022 (Moksha Khajuria Kazmi) Amjad lone, Secretary Judge Whether the judgment is reportable: No