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2020 DIGILAW 162 (JK)

Bashir Ahmad Laway v. State Of J&K

2020-03-12

TASHI RABSTAN

body2020
JUDGMENT 1. District Magistrate, Pulwama - respondent no. 2 herein, by Order No.105/DMP/PSA/19 dated 29.08.2019 has placed one Shri Bashir Ahmad Laway S/o Ab. Rashid Laway R/o Lurgan, Tral Tehsil Tral District Pulwama (for brevity 'detenu') under preventive detention to prevent him from acting in any manner prejudicial to the maintenance of public order and directed his lodgement in Central Jail, Srinagar. It is this order of which petitioner is aggrieved and beseeches quashment thereof. 2. Reply affidavit has been filed by respondents, strenuously resisting the petition. Detention record has also been produced by learned counsel for the respondents to substantiate the statements made in the Reply. 3. I have heard learned counsel for parties and considered the matter. 4. Learned counsel for petitioner has, besides other grounds of challenge, stated that material, so relied upon by detaining authority in grounds of detention, has not been supplied to petitioner and, therefore, petitioner could not make an effective representation against his detention. 5. In view of case set up coupled with submissions made by learned counsel for petitioner, it would be appropriate to first go through the detention record, produced by learned counsel for the respondents, so as to ascertain as to whether the material, relied upon by detaining authority while issuing impugned detention order, has been furnished to detenu or not. The detention record, inter alia, contains 'Execution Report' of detention order, signed by Executing Officer, Abdul Ahad, ASI No. 18/AWT of DPL, Awantipora, which reveals that copy of warrant, copy of notice, and copy of grounds of detention, in total 05 leaves, have been handed over to detenu. 6. Perusal of impugned detention order reveals that Senior Superintendent of Police, Awantipora, vide his letter no.Conf/PSA/2019/650-53 dated 28.8.2019, produced material record, such as dossier and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention make reference of as many as four FIRs, to have been registered against detenu. Involvement of detenu in aforesaid cases appears to have weighed with detaining authority, while making detention order. The record, as noted above, does not indicate that the copies of aforesaid First Information Reports, statements recorded under Section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, was ever supplied to detenu. Involvement of detenu in aforesaid cases appears to have weighed with detaining authority, while making detention order. The record, as noted above, does not indicate that the copies of aforesaid First Information Reports, statements recorded under Section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, was ever supplied to detenu. The abovementioned material, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis, that the 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 the detention order is based, is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions concerning the activities of detenu are baseless and misplaced. If the 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. While saying so, I draw the support from the law laid down in ThahiraHaris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184 ; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; DhannajoyDass v. District Magistrate, AIR, 1982 SC 1315; Sofia GulamMohdBham v. State of Maharashtra and others AIR 1999 SC 3051 ; and Syed AasiyaIndrabi v. State of J&K &ors, 2009 (I) S.L.J 219. 7. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has made it clear that it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, the procedural requirements, as discoursed and noted above, have not been followed and complied with by respondents in letter and spirit and as a corollary thereof, petition requires to be allowed. 8. In the present case, the procedural requirements, as discoursed and noted above, have not been followed and complied with by respondents in letter and spirit and as a corollary thereof, petition requires to be allowed. 8. For the foregoing reasons, this petition is disposed of and detention Order no. 105/DMP/PSA/19 dated 29.08.2019, passed by District Magistrate, Pulwama, is quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenu, namely, Shri Bashir Ahmad Laway S/o Ab. Rashid Laway R/o Lurgan, Tral Tehsil Tral District Pulwama, forthwith, provided he is not required in any other case. Disposed of. 9. Detention record so produced in the open Court is returned to learned counsel for the respondents.