Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 657 (JK)

Jahangeer Reshi v. Union Territory of J&K

2020-12-03

PUNEET GUPTA

body2020
Judgment Puneet Gupta, J.—The petitioner has challenged the detention order No. 97/DMB/PSA(F)2020 dated 20.06.2020, passed by respondent No. 2, on the ground that the allegations leveled against the petitioner are not based on any specifics details and further the petitioner has not been informed about the right to make representation before the authorities. Petitioner has been falsely implicated in the cases of which the mention is made in the grounds of detention. The petitioner has not been supplied the detention material and further the detention has not been approved nor reference is made to the Advisory Board nor the Board has given its opinion within the stipulated period as required in the law. There is no compelling circumstance to pass the order impugned in the petition. The detention order has been passed without application of mind. 2. Reply has been filed on behalf of the respondent No. 2 wherein it is submitted that as there was apprehension of bail being granted to detenue, therefore, the order impugned came to be passed against the petitioner who is involved in Timber Smuggling activities. The detention order has been passed after due application of mind and all the procedural safeguards have been followed in the case of the petitioner. The detention was approved by the government within the stipulated period and further the case was referred to Advisory Board for its opinion and after receiving the opinion of the Board the government confirmed order of detention of 20.06.2020. The petitioner did not choose to file representation against the detention order and waived the right. The petition is required to be dismissed is what is pleaded in the objections. 3. Learned counsel for the petitioner has made submissions as per contents of the petition. He has submitted that the detention order passed against the petitioner does not stand the test of validity in the eyes of law. Learned counsel for the respondents has argued that all the procedural safeguards have been observed while passing the detention order. The unlawful activities of the petitioner made the respondent No. 2 to pass impugned order which is passed as per law. Record has been produced in the case. 4. The purpose of preventive detention order is to prevent the person from committing such illegal activities in future which are likely to be prejudicial and disturb the public order or security of the State. Record has been produced in the case. 4. The purpose of preventive detention order is to prevent the person from committing such illegal activities in future which are likely to be prejudicial and disturb the public order or security of the State. The detention order cannot be passed on flimsy grounds and the substantial material has to be there before such an order is passed by the detaining authority. The satisfaction of the detaining authority while passing the detention order is indeed subjective one but that does not mean the same is beyond the scrutiny of the court and the court on the facts of a particular case can hold that the detaining authority has faulted while passing the detention order. In Union of India Vs. Dimple Happy Dhakad (Appeal No. 1064/2019 decided on 18.07.2019) the Hon’ble Supreme Court has held that the subjective satisfaction of the detaining authority is not immune from judicial reviewability. 5. In Haradhan Saha Vs. State of West Bengal 1975(3) SCC 198 the Hon’ble Supreme Court upheld the constitutional validity of Maintenance of Internal Security Act, 1971. 6. Respondent No. 2 has passed the order of detention, impugned in the present petition, on the ground that material has been provided by the Divisional Forest Officer, Kamraj Forest Division, Zangli Kupwara with regard to the petitioner and on the basis of the material supplied by the said officer the respondent is satisfied that in order to prevent the petitioner from smuggling timber it is necessary to pass the detention order under Clause A-1 (i) of Section 8 of Jammu and Kashmir Public Safety Act, 1998 (hereinafter accord of the Act). It may be noted that the period of detention has not been mentioned in the order and it is sated that the period of detention is required to be specified by the government. The copy of the order has also been sent to SSP Sopore for execution. Vide separate orders of the same date the petitioner has been informed that he has been detained on the grounds specified in the Annexure and along with the material forming the said order. The petitioner has also been informed that he can be heard in person by the Advisory Board and representation can also be made to the government within the prescribed period against the detention order. The petitioner has also been informed that he can be heard in person by the Advisory Board and representation can also be made to the government within the prescribed period against the detention order. The grounds of detention speak of the FIRs which have been registered against the petitioner and are ten in number. The details are also mentioned of the cost of damage and the place of damage with volume of damage allegedly committed by the petitioner with regard to his activities related to forest offence. It is further stated that in FIR No. 131/2020 registered with police Station, Sopore there is every livelihood of the petitioner being admitted to bail and the petitioner may again indulge into timber smuggling activities. 7. The perusal of the file reveals that the government Order No. Home/PB-V/1317 of 2020 dated 30.06.2020, passed by Principal Secretary to Government, confirms the order of detention passed by the respondent No. 2 and the petitioner has been detained for a period of one year in Central Jail, Kot Balwal, Jammu. The Advisory Board constituted under the Act has filed its report dated 20.07.2020 whereby the detention order passed against the petitioner has been confirmed. The government after receiving the report of Advisory Board has confirmed the detention of the petitioner vide Order No. Home/PB-V/1509 of 2020 dated 06.08.2020. 8. It may be pertinent to mention herein that the detention order dated 20.06.2020 has been executed by the Superintendent Central Jail, Jammu and execution report with regard to the same is on the file. As per the report the detention order has been executed on 27.06.2020 and the contents of detention warrant along with grounds of detention have been read over to the petitioner in English and explained in Kashmiri language which the petitioner understands. The documents have been supplied to the petitioner and informed of his right to make representation to the government as well as detaining authority. The signature of the petitioner is on the execution report. The separate receipt given by the petitioner pertaining to the receipt of grounds of detention and the relevant record is also on the file. 9. The court finds no reason to disbelieve the record whereby the petitioner is stated to have been made aware of the information and supply of documents as mentioned in the execution report and the receipt of grounds of detention, both dated 27.06.2020. 9. The court finds no reason to disbelieve the record whereby the petitioner is stated to have been made aware of the information and supply of documents as mentioned in the execution report and the receipt of grounds of detention, both dated 27.06.2020. The signatures on the documents, execution report and the receipt of grounds of detention, raise the presumption with regard to the above fact. 10. As per the record, the petitioner has been handed over one leaf of detention warrant, two leaves of grounds of detention and one leaf of notice of detention meaning thereby only four leaves have been provided to the petitioner while executing the detention order. The execution order also says of handing over of four leaves to the petitioner. The perusal of detention order clearly mentions that the detaining authority has passed the order on the basis of material supplied in the shape of dossier and other connected documents like copies of FIRs etc. by the Divisional Forest Officer, Kamraj Forest Division, Zangli Kupwara. The detention order thus reflects that it has been passed by the respondent No. 2 after taking into consideration all the material including the copies of FIRs and other material supplied by the officer of the forest department. Unfortunately, the documents relating to detention have not been supplied to the petitioner on which the detention order was founded by the respondent No. 2. Neither the copies of FIR nor any other material provided by the forest authority to the detaining authority stands supplied to the detenue. It was the statutorily obligated upon the respondents to provide the petitioner all the material which formed basis for detention of the petitioner. The failure to supply the necessary documents by the respondents prevents the petitioner from having the knowledge of all the essential material which led to passing of detention order. Not only that, it also prevented the petitioner from effectively representing to the Advisory Board/Government against his detention. The mere fact that only four leaves were provided to the petitioner though the other material was also possessed by the detailing authority speaks of the procedural lapse which has occurred in the present case. The omission committed by the respondents in this regard cannot be overlooked so as to give leverage to the detaining authority of having passed valid detention order. The omission committed by the respondents in this regard cannot be overlooked so as to give leverage to the detaining authority of having passed valid detention order. It is trite proposition of law that the petitioner is entitled to all the relevant material on basis of which the detention order has been passed by the detaining authority. The courts in numerous judgments have held that failure to provide the relevant record by the detaining authority to the detenu is non-compliance of the provisions of the Act. The above deficiency on the part of the respondents, as noted by the court, definitely dents the validity of the impugned order. The order of detention is required to be quashed on this ground alone. 11. It may be noted that the record produced reveals that the petitioner made representation for release/revocation of his detention order and this fact is revealed from the letter No. Home/PB-V/Rep-Gen/2020 dated 26.08.2020 from Deputy Secretary to Government Home Department to Additional Director General of Police, CID, J&K. The comments of ADG Police were sought with regard to release or shifting of the petitioner and other detainees outside J&K. The response to this communication was sent vide No. CID/BR/2-1/1-J/SPR/2020/719 dated 25.09.2020. This communication did not recommend the case of the petitioner. The petitioner made belated representation. However in view of the fact that the petitioner was not supplied the relevant material while executing the detention order it cannot be said that the petitioner could effectively make representation to the authorities. 12. It may also be pointed out that the grounds of detention order mentions of the petitioner being likely released on bail. It is not made out from the detention order that the petitioner had in fact applied for the bail in FIR No. 131/2020. In absence of the same the apprehension of the respondent No. 2 that the petitioner is likely to be admitted to bail is not well founded. The observation of the respondent No. 2 is pure imagination and could not be the reason for passing order of detention against the petitioner. 13. The order of preventive detention could be passed by the respondent No. 2 on the basis of the smuggling activities of timber as the same is provided in the Act. The observation of the respondent No. 2 is pure imagination and could not be the reason for passing order of detention against the petitioner. 13. The order of preventive detention could be passed by the respondent No. 2 on the basis of the smuggling activities of timber as the same is provided in the Act. The very fact that the material which was required to the petitioner was not provided by the authorities the order passed by the respondents loses its sheen. 14. In view of the discussion made above and the court specifically holding that the petitioner has not been provided all the necessary material/documents, basis of detention order, the court need not go into other aspects of the matter. The order of detention, impugned in the present petition, is liable to be quashed and is, accordingly, quashed. The petitioner if not presently required in any other case be released forthwith. 15. The petition is, accordingly, disposed of. 16. Xerox copy of the record received is handed over to the concerned.