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2021 DIGILAW 150 (JK)

Bashir Ahmad Bhat v. State of J&K

2021-04-02

RAJNESH OSWAL

body2021
Judgment Rajnesh Oswal, J.-The petitioner through the medium of this petition filed through his father, has questioned the detention order bearing No.DMS/PSA/55/2019 dated 08.08.2019 issued by the District Magistrate, Srinagar (respondent no.2 herein) by virtue of which the petitioner has been detained in preventive detention under the Jammu and Kashmir Public Safety Act, 1978 (for short hereinafter “Act”) in order to prevent him from acting in any manner prejudicial to the security of the State (now Union Territory). 2. The present petition has been filed on the ground that the petitioner was arrested by the security forces without any justification and was detained under the order impugned. The petitioner has assailed the order impugned on the ground inter-alia that the grounds of detention on the basis of which the petitioner has been detained, are vague and mere assertions of detaining authority and no prudent man can make an effective representation against these allegations made in the detention order. The learned counsel for the petitioner submits that petitioner had already forwarded representation to the Government but the same was not considered. He was already in custody and being implicated in serious case, there was no likelihood of detenue being granted bail in near future but the same fact has not been mentioned in the detention order. It is also submitted that the petitioner was not well informed within what time he can make representation to the detaining authority or to the Government and that the grounds of detention were never explained to him in his language. 3. Respondents have filed response in which it has been stated that the petitioner was detained pursuant to the order of detention impugned in the petition and all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. In compliance to the detention order, warrant was accordingly executed by the Executing Officer, ASI Mohammad Majnoon of Police Station Rajbagh and the petitioner was handed over to the Assistant Superintendent, Central Jail, Srinagar, for lodgment. It is submitted that the contents of the detention order, warrant and the grounds of detention, were read over and explained to the petitioner in the language which he fully understood and in lieu whereof the petitioner subscribed his signatures on the execution report/order marked as Mark “A”. It is submitted that the contents of the detention order, warrant and the grounds of detention, were read over and explained to the petitioner in the language which he fully understood and in lieu whereof the petitioner subscribed his signatures on the execution report/order marked as Mark “A”. The petitioner was well informed about his right of making representation to the detaining authority or to Government against his detention. The petitioner despite having received the aforesaid entire material, has not chosen to make any representation against his detention. Further, respondents have submitted that in terms of Section 15 of the Act, the case of the petitioner was referred to Advisory Board of the State for its opinion. The Advisory Board, has opined that there is sufficient cause for the detention of the petitioner. After the receipt of the opinion of the Advisory Board, the Government vide order No. Home/PB-V/1804 of 2019 dated 13.09.2019, confirmed the order of detention dated 08.08.2019 issued by the District Magistrate, Srinagar, against the petitioner. It has also been stated by the respondents that the petitioner was involved in serious offence in case FIR No.73/2018 and because of his illegal activities, the petitioner was ordered to be detained under the Act. 4. Mr.Syed Musaib, learned counsel for the petitioner has vehemently argued that the documents relied upon by the detaining authority for detaining the petitioner under preventive custody were not handed over to the petitioner so as to enable him to make an effective representation before the detaining authority or to the Government. He has drawn our attention to the execution report marked as Annexure R1 annexed with the counter affidavit filed by the respondents. He has also reiterated that petitioner was already in custody at the time of passing of detention order and there is nothing on record to demonstrate that the petitioner had filed any bail application, in which the bail could have been granted to him by the trial court, as such, there is no subjective satisfaction on the part of the detaining authority that there is any necessity to detain the petitioner. He has further argued that no material has been supplied to him so as to enable him to make an effective representation to the detaining authority against his preventive detention. 5. He has further argued that no material has been supplied to him so as to enable him to make an effective representation to the detaining authority against his preventive detention. 5. Per contra, Ms.Saba Gulzar, learned counsel for the respondents has argued that all the documents have been served upon the petitioner. Ms. Saba Gulzar has also argued that the detention order is legal and all procedural and statutory safeguards have been complied with while passing the order of detention. 6. Heard and considered. 7. One of the grounds raised by the petitioner is that no documents, those were relied upon by the detaining authority, were furnished to the petitioner. The perusal of the execution report Annexure R1 reveals that PSA warrant one leaf, notice one leaf, grounds of detention one leaf, dossier two leaves in total (five leaves) were read over and explained to the detenue and were handed over to the petitioner and in token of receipt thereof, he had signed upon the execution report dated 11.08.2019. 8. Perusal of the grounds of detention reveals that the detaining authority has relied upon FIR No.173 of 2018 while passing the detention order but copy of the same has not been furnished to the petitioner as is evident from Annexure R-1 annexed with the counter affidavit so as to enable the petitioner to make effective representation against the detention order. 9. It is only after petitioner is supplied all the material so that he can make an effective representation to the detaining authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent no.2 to supply material relied upon by him while passing the detention order, renders the detention order illegal. Reliance is placed upon the decision of Apex Court in Tahira Haris Vs. Government of Karnataka, reported in (2009) 11 SCC 438 and the relevant para reads as under:- “28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.” 10. The other contention raised by the petitioner is that the detaining authority has simply acted upon the dossier and there was no material before the detaining authority on the basis of which he has arrived at a satisfaction that there was likelihood of petitioner being released on bail and the grounds of detention are absolutely silent about whether any bail application has been filed by the petitioner. Perusal of the detention order reveals that passing reference has been made in the same on the basis of dossier that the petitioner was arrested on 09.03.2019 and is in judicial custody and there is every likelihood of petitioner being admitted to bail. There is no reference either in the dossier or in the grounds of detention that the petitioner had preferred any bail application before the Trial Court. The absence of proof of any such application in grounds of detention reveal that there was virtually no subjective satisfaction on the part of the detaining authority. The impugned detention order, as such, is not sustainable on this ground also. Reliance is placed upon the decision of Apex Court in “Rekha vs State of T.N.” reported in (2011) 5 SCC 244 , in which it has been held:- “In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.” 11. In view of the above, this petition is allowed. Detention order No. DMS/PSA/55/2019 dated 08.08.2019 is quashed. Petitioner (detenue) be set at liberty forthwith from the preventive custody provided he is not required in any other case.