Ishfaq Ahmad Ganie v. Union Territory of Jammu And Kashmir
2022-09-02
SANJAY DHAR
body2022
DigiLaw.ai
JUDGMENT 1. Impugned in this petition is the detention order No.DMS/PSA/ 131/2021 dated 28.02.2022, issued by District Magistrate, Srinagar (for brevity 'Detaining Authority') is sought. In terms of the aforesaid order, Ishfaq Ahmad Ganaie @ Aqib Puj son of Ghulam Mohammad Ganaie resident of Chadoora Budgam (for short 'detenu') has been placed under preventive detention and lodged in Central Jail, Srinagar. 2. The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind and the procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the Security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and the same were read over and explained to the detenue. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit and that all the constitutional and procedural safeguards have been strictly followed while issuing the impugned order. The respondents have produced the detention record in order to buttress the contentions raised in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds: (I) That the detenue's right of making an effective representation against his detention has been violated as the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him; (II) That there has been non-application of mind on the part of the detaining authority as the detenue had already been admitted to bail in FIR No.11/2022 of P/S Shergari but this fact has nowhere been mentioned in the grounds of detention; 6.
Per contra, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 7. The first ground projected by learned counsel for the petitioner is that the detenue has been disabled from making an effective representation against the order of detention as whole of the material, which formed basis of the grounds of detention, has not been furnished to him. This ground appears to have substance. A perusal of the detention record reveals that the petitioner has been provided eight leaves comprising of copy of detention warrant, notice, grounds of detention and FIR. The fact that only eight leaves have been furnished to the detenue shows that not only the copy of the dossier but even the copies of the statements of the witnesses etc. recorded during investigation of FIR Nos.89/2019, 11/2022 and 112/2021, mention whereof is made in the grounds of detention, have not been provided to the detenue. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner's involvement in these FIRs is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only eight leaves. Thus, 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. 8. In the cases of preventive detention, a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention.
8. In the cases of preventive detention, a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The Supreme Court has in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318 , while interpreting Article 22(5) of the Constitution, observed that furnishing of grounds of detention means material sufficient to enable the petitioner to make an effective representation. 9. In Shalini Soni v. Union of India, (1980) 4 SC 544, the Supreme Court has observed that 'grounds' in Article 22(5) do not mean mere factual inferences but means factual inferences plus factual material which led to such factual inferences. The Court further clarified that copies of the documents to which reference is made in the grounds must be supplied to the detenue as part of the grounds. 10. Thus, the detaining authority is required to communicate to the detenue, (i) grounds of detention; (ii) all the documents referred to in the grounds of detention; (iii) all the documents and material which the detaining authority considers while framing his subjective satisfaction; (iv) detention order and also the police report or dossier if any. 11. The word 'grounds' used in clause (5) of Article 22 of the Constitution means not only the narrations or conclusions of facts, but also all materials on which those facts or conclusions which constitute grounds are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation. The detaining authority is obliged to mention in the grounds as to on which material it has based its satisfaction. Failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material which the detaining authority has considered and relied upon. For this, support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241. 12. As already noted, the petitioner has not been furnished the whole of the material which formed the basis of the grounds of detention. It appears that the copy of the police dossier and the material showing involvement of petitioner in the three FIRs which formed basis for the grounds of detention have not been furnished to the petitioner.
12. As already noted, the petitioner has not been furnished the whole of the material which formed the basis of the grounds of detention. It appears that the copy of the police dossier and the material showing involvement of petitioner in the three FIRs which formed basis for the grounds of detention have not been furnished to the petitioner. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 13. Next ground urged by the petitioner is that the impugned detention order suffers from non-application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had been admitted to bail in FIR No.11/2022 of P/S Shergari. A copy of the order issued by the 3 rd Additional Sessions Judge, Srinagar, on 18.02.2022 in this regard has been placed on record by the petitioner. The non-mentioning of this important fact in the grounds of detention exhibits nonapplication of mind on the part of detaining authority. It means either the Detaining Authority has not applied its mind or the full material relatable to the detenue was not placed before it. So, the nonapplication of mind is explicit, which renders the order of detention illegal. In my aforesaid view, I am fortified by the judgment rendered in the case captioned Anant Sakharam Raut Vs. State of Maharashtra and others, AIR 1987 SC 137 . 14. Viewed thus, the petition is allowed and the impugned order of detention 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. 15. The record, as produced, be returned to the learned counsel for the respondents.