MAJID MOHAMMAD RATHER v. UT OF J&K & Anr.

the detenue in very serious offences as mentioned in the FIR registered against him. 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 further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. That the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198. Learned counsel for the respondents has produced the detention record to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for the parties and perused the material available on 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: WP(Crl) No.718/2022 (I) (II) That the detenue has been disabled from making an effective representation against his detention as whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him. That there has been non-application of mind on the part of the detaining authority as the detenue was already in custody in connection with FIR No.27/2022 for offences under Section 302 IPC, 7/27 Arms Act and 13 UAP Act registered with P/S Kulgam, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws. 6) The first ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention because whole of the material, which formed basis of the grounds of detention and the consequent order of detention, has not been furnished to him, appears to have substance. A perusal of the detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (03 leaves), copies of FIR, statements of witnesses and other relevant documents (01 leaf), (total 08 leaves). If we have a look at the grounds of detention, it bears reference to FIR No.27/2022 of P/S Kulgam. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement therein is shown, particularly when the petitioner is not nominated in the said FIR. All this material would run in dozens of pages and it is impossible that all this material would be covered in only one leaf. Thus, contention of the petitioner that WP(Crl) No.718/2022 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. 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. 7) 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 Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184). 8) The next ground project by learned counsel for the petitioner is that the detenue was already in custody in case FIR No.27/2022 for offences under Section 302 IPC, 7/27 Arms Act and 13 UAP Act registered with P/S Kulgam, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining WP(Crl) No.718/2022 Authority has not spelt out the compelling reasons for detaining the detenue under preventive laws. 9) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, and T. P. Moideen Koya vs. Government of Kerala and ors.” 2004 (8) SCC 106. 10) In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are prejudicial to the maintenance of security, sovereignty and integrity of Jammu and Kashmir UT. However, the Detaining Authority has not recorded any reason to justify the preventive detention of the petitioner, who was already undergoing custody in a heinous offence relating to which there was remote possibility of his procuring the bail. In fact, there is nothing on record to show that the petitioner had even applied for grant of bail before the concerned court. In these circumstances, there were no compelling reasons for the detaining authority to pass the impugned order of detention, particularly when the detenue was involved in offence under Section 302 IPC, wherein jail is the rule and bail is the exception. WP(Crl) No.718/2022 11) As already noted, the Supreme Court in a catena of judgments has clearly held that unless there are compelling circumstances and cogent material before the Detaining Authority for passing a detention order against a person who is already in custody or is facing criminal prosecution in a substantive offence, the Detaining Authority cannot pass an order of detention against such a person. 12) From the perusal of material/record before me, it is clear that the detenue has been shown involved in heinous substantive offences. When it is so, the Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law. As already discussed, no such reasons have been recorded in the grounds of detention. The impugned order of detention, therefore, cannot be sustained. 13) For the foregoing reasons, this petition is allowed. The impugned order of detention is quashed. A direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case. 14) The record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 20.07.2024 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document

22.07.2024 09:15 WP(Crl) No.718/2022