Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 361 (JK)

Junaid Haroon Rashid Rather v. UT of J&K

2022-07-29

SINDHU SHARMA

body2022
JUDGMENT : 1. The present Habeas Corpus Petition has been filed by the detenu-Junaid Haroon Rashid Rather, S/o Haroon Rashid Rather, R/o Vehil Shopian, Tehsil & District Shopian through his father Haroon Rashid Rather, challenging his order of detention No. 89/DMS/PSA/2021, dated 18.10.2021, passed by the District Magistrate, Shopian, detaining him under the provisions of Jammu and Kashmir Public Safety Act, 1978, with a view to prevent him from acting in any manner which is prejudicial to the security of the State. 2. The petitioner seeks quashing of the order of detention on the grounds that; (i) the procedural safeguards provided to him under the Constitution of India and in terms of J&K Public Safety Act, have not been complied with by the Detaining Authority. (ii) the grounds on which the Detaining Authority has derived its satisfaction are vague, obscure, ambiguous and are not connected with the detenue and, as such, no effective representation can be made against these allegations, therefore, this detention bad. (iii) the detenue had moved are presentation, immediately after his detention but the same has not been considered and this has resulted in infraction of the rights guaranteed to the detenue. (iv) all the material relied upon by the Detaining Authority, while passing the order of detention has not been supplied to the detenu, thus, the detenue has not been able to make an effective representation. 3. Mr. Ilyas Laway, learned G.A. has filed counter affidavit as well as produced the record of detention. 4. Learned counsel for the respondents submits that the activities of the detenue are highly prejudicial to the security of the State, as such, he was detained to prevent him from such actions. All the procedural safeguards and constitutional guarantees were duly complied with by the Detaining Authority. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been provided to the detenu and he was also informed of his right to make a representation against the order of detention. 5. Heard learned counsel for the parties and perused the record also. 6. The first contention raised by the detenue is that all the material relied upon by the Detaining Authority has not been provided to him. 5. Heard learned counsel for the parties and perused the record also. 6. The first contention raised by the detenue is that all the material relied upon by the Detaining Authority has not been provided to him. The detenue has only received the grounds of detention consisting of (05) leaves on 21.10.2021, as per the receipt of grounds of detention but the dossier and other material relied upon by the Detaining Authority has not been provided to the detenue. The detention order dated 18.10.2021 reflects that the same is based on the dossier placed before the Detaining Authority by the Senior Superintendent of Police, Shopian. The detenue was thus prevented from making an effective representation due to non-supply of entire material relied upon by the Detaining Authority while arriving at a subjective satisfaction. In order to make an effective representation, the detenue must know, what weighed with the Detaining Authority while passing the order of detention and non-supply of the same has hampered him from making an effective representation. 7. This non-supply of material had prevented the detenue from making an effective and purposeful representation and failure in supplying the same has rendered the detention unsustainable in law. 8. In view of the law laid down in Sophia Ghulam Mohd. Bham v. State of Maharashtra & Ors., AIR1999 SC 3051, the Apex Court observed as under: -"... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language...". 9. Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicated to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention. 9. Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicated to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention. This right to make a representation can only be exercised by the detenue provided all the material relied upon, while passing the order of detention are provided to be detenu. In order to make an effective representation, the detenu must know the fact of what weighed in the mind of the Detaining Authority for passing the impugned order of detention. 10. The next contention raised by the detenue is that the detenue, immediately after his detention order, filed a representation but this representation was not considered by the Detaining Authority till date. 11. The Hon'ble Apex Court in "Sarabjeet Singh Mokha v. The District Magistrate, Jabalpur & Ors.",SCC Online SC 1019, has held as under: "....Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition". 12. In "Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad & Ors.", 1996 Cr.LJ 1981, the Court has quashed the detention order only on the ground of delay in disposal of the representation. It was held as under: "...it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days". 13. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days". 13. Thus, the order of detention is invalided on the grounds that there is unexplained delay on the part of the Government in deciding the representation of the detenue and the fact that all the material relied upon by the Detaining Authority has not been provided to him, thus, this has resulted in infraction of the detenue's rights and this also vitiates the order of detention. 14. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention order No. 89/DMS/PSA/2021, dated 18.10.2021, passed by the District Magistrate, Shopian under which detenu-Junaid Haroon Rashid Rather, S/o Haroon Rashid Rather is under detention, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 15. Let the detention record be returned to learned counsel for the respondents by the Registry forthwith.