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2020 DIGILAW 417 (JK)

Ishfaq Ahmad Najar v. State of J and K

2020-08-21

TASHI RABSTAN

body2020
JUDGMENT The petitioner, namely, Ishfaq Ahmad Najar, son of Abdul Rehman Najar, resident of Panzan Chadoora, Budgam (hereinafter detenue) has preferred this petition questioning the detention order bearing No.DMB/PSA/17 of 2019 dated 28.03.2019 issued by District Magistrate, Budgam. The said detention order has been passed under Section 8 of the J&K Public Safety Act, 1978. 2. The star ground of challenge in this petition is that the detenue has not been provided with the relevant material as mentioned in the grounds of detention on the basis of which the detention order has been passed and the same is in clear violation of Article 22(5) of the Constitution of India. It is further contended that due to non-supply of relevant material, the Coram :- petitioner could not make effective representation to the detaining authority which is clear violation of provisions of Public Safety Act. 3. Counter affidavit has been filed by the respondents stating therein that the detention order was executed on 03.04.2019 against the detenue by the executing Officer, ASI Ghulam Qadir of Police Station Chadoora and that the copy of PSA warrant, letter addressed to the detenue, grounds of detention as well as the material relied upon by the detaining authority were handed over to the detenue. However, the respondents in their counter affidavit have not disclosed whether the copies of FIR were supplied to the detenue or not. Non-furnishing of copies of FIRs and copies of statements, if any recorded, is clearly violation of provisions of Public Safety Act. 4. Heard learned counsel for the petitioner and perused the record of the petition as well as counter filed by the respondents. 5. The failure on part of detaining authority to supply material relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. While holding so, support is drawn from 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 Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR, 1999, SC 3051); and Syed AasiyaIndrabi v. State of J&K &ors(2009 (I) S.L.J 219); and Union of India v. Ranu Bhandari (2008 Cr. L. J. 4567); 6. L. J. 4567);DhannajoyDass v. District Magistrate (AIR, 1982 SC 1315);Sofia Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR, 1999, SC 3051); and Syed AasiyaIndrabi v. State of J&K &ors(2009 (I) S.L.J 219); and Union of India v. Ranu Bhandari (2008 Cr. L. J. 4567); 6. Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, to make a representation against his detention. It needs no semphasis that a detenu, on whom preventive detention order is slapped, is held in custody without a formal charge and trial. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenu cannot be expected to make a representation against his detention. 7. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenu has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenu. It is well settled law that even where one of grounds, relied upon by Detaining Authority to order detention, is vague and ambiguous, Constitutional and Statutory right of detenu to make an effective representation against his detention are taken to have been violated. Reference in this regard may be made to law laid down in State of Maharashtra ors v. Santosh Shankar Acharya case (supra); Chaju Ram v. State of J&K AIR 1971 SC 263 ; Dr.RamKrishan v. The State of Delhi &ors. Reference in this regard may be made to law laid down in State of Maharashtra ors v. Santosh Shankar Acharya case (supra); Chaju Ram v. State of J&K AIR 1971 SC 263 ; Dr.RamKrishan v. The State of Delhi &ors. AIR 1953 SC 318 ; MohdYousuf Rather v. State of J&K AIR 1979 SC 1925 ; and GhulamNabi Shah v. State of J&K &ors. 2005(I) SLJ 251. 8. In the present case the counter filed by the respondents attached with copy of execution report, which reveals that the detenue was provided with the copy of detention warrant and copy of grounds of detention, total eight (8) leaves. However, the execution report nowhere mention that the petitioner was supplied the copy of FIRs which is precise case of the detenue that he has not been supplied the copy of relevant documents. Therefore the detenue could not make an effective representation against his detention order. Non-supply of complete material is clearly violation of provisions of Public Safety Act as well as Constitution of India. 9. For the reasons discussed above, the petition is allowed and detention order No.DMB/PSA/17 of 2019 dated 28.03.2019 issued by District Magistrate, Budgam –respondent No. 2, directing Ishfaq Ahmad Najar, son of Abdul Rehman Najar, resident of Panzan Chadoora, Budgam, is quashed. Respondent No.2 is directed to release the detenu from preventive detention provided he is not required in connection with any other case. 10. Disposed of as above.