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2021 DIGILAW 676 (JK)

Bilal Ahmad Wani v. Union Territory of J&K

2021-12-24

SANJAY DHAR

body2021
JUDGMENT : SANJAY DHAR, J. 1. Challenge in this petition is thrown to the Order No. 12/DMP/PSA/21 dated 05.02.2021, issued by District Magistrate, Pulwama (for brevity “Detaining Authority”) whereby Shri Bilal Ahmad Wani S/o Late Ab. Gani Wani resident of Karimabad Tehsil and District Pulwama (for short “detenu”) has been placed under preventive detention and directed to be lodged in Central Jail, Srinagar. 2. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been also urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. It has also been contended that the petitioner has not been informed as to before which authority he had to make a representation. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and I have also gone through detention record. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main ground that has prevailed during discussion is that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been supplied to him. 6. On perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as there is nothing in the said record to show that the whole of the relevant material has been supplied to the detenue. 6. On perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as there is nothing in the said record to show that the whole of the relevant material has been supplied to the detenue. The execution report in the record reveals that the detenue has been supplied 09 leaves comprising detention order (one leaf), notice of detention(one leaf), grounds of detention (02 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other relevant documents (05 leaves). Thus, it appears that the detenue has not been provided the copy of dossier. The counter affidavit filed by the District Magistrate indicates that only photocopy of the order of detention, communication letter and grounds of detention have been furnished to the detenue. Police dossier is the basic document on the basis of which the detaining authority derives its satisfaction and, as such, non-supply of the said document to the detenue strikes at the very root of the right of a detenue to make effective representation against the order of detention. Thus, the contention of the petitioner that 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 the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board. 7. Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham vs. State of Maharashtra and Others, AIR 1999 SC 3051 , Thahira Haris vs. Government of Karnataka and Others, AIR 2009 SC 2184 and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam vs. State of Gujarat and Others, (1982) 3 SCC 440 . 8. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention is, therefore, unsustainable. 8. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention is, therefore, unsustainable. Accordingly, the same is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 9. The record, as produced, be returned to the learned counsel for the respondents.