Fayaz Bhat Alias Bhai Bhat v. Union Territory of J&K & Ors.

Judgment

1. Through the medium of this writ petition, Order No. 126/DMS/PSA of 2022 dated 10.05.2022, passed by District Magistrate, Shopian (for short “detaining authority”) whereby detenu, namely, Fayaz Bhat Alias Bhai Bhat S/o Rehman Bhat R/o Karewa Zawoora Tehgsil and District Shopian has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the Smuggling of Timber, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents.

3. The main grounds on which the detention is sought to be quashed are that the grounds of detention are vague, indefinite, cryptic, inasmuch as the detaining authority has not attributed any specific allegation against the detenu; that the detaining authority has not furnished the material including dossier, relied upon by it, to detenu to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by detaining authority 1 WP(Crl) no.653/2022 concerning involvement of detenu in alleged activities; that the detenu has been shown to be involved in three FIRs bearing nos.286/2018, 29/2020 and 62/2021 in which bail has already been granted by the court of competent jurisdiction, which fact has not been mentioned by the detaining authority which makes the detention order illegal.

4. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State 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 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” and “Receipt of detention Papers”. It would be advantageous to reproduce relevant portion of “Execution Report” hereunder: “The contents of detention warrant, grounds of detention and other documents (04 Leaves) have been read over to the above said detenu in English and explained in Urdu, Hindi and Kashmiri languages which he fully understood and accordingly copy of detention warrant and copy of grounds of detention and other documents (04 leaves) have been provided to him for making representation …..…..”

6. It would also be appropriate to reproduce relevant portion of “Receipt of Grounds of Detention” herein: the District “Received grounds of detention Magistrate Shopian vide Order No. 126/DMS/PSA/2022 dated 10.05.2022 in English consisting of 04 leaves in all…..….” issued by It is unambiguously clear and evident from perusal of Execution Report and Receipt of grounds of detention that only four leaves have been given to detenu. 2 WP(Crl) no.653/2022

7. Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Divisional Forest Officer, Forest Division, Shopian, vide no. DFO/SPN/161-64/L dated 07.05.2022, detaining authority was satisfied that there were sufficient grounds to prevent detenu from acting in any manner prejudicial to the smuggling of timber, 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, on its perusal, give reference to cases – FIR Nos. 286/2018, 29/2020 and 62/2021 to have been registered against detenu. Involvement of detenu in the aforesaid cases appears to have weighed with detaining authority, while making detention order. The detention record, as noted above, does not indicate that copies of aforesaid First Information Reports, Statements recorded under Section 161 Cr. PC, dossier and other material collected in connection with investigation of aforesaid cases was ever supplied to the detenu, on the basis whereof impugned detention order has been passed. The aforesaid material, thus, assumes importance in the facts and circumstances of the case.

8. 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. 3 WP(Crl) no.653/2022

9. 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.

10. Based on the above discussion, the petition is disposed of and Detention Order no. 126/DMS/PSA of 2022 dated 10.05.2022, issued against the detenu 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 18.05.2023 (Qazi Amjad Secy.) Whether approved for reporting? Yes/No 4 WP(Crl) no.653/2022