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2023 DIGILAW 300 (JK)

Nisar Ahmad Ganie v. UT of J&K

2023-07-24

MOKSHA KHAJURIA KAZMI

body2023
JUDGMENT : MOKSHA KHAJURIA KAZMI, J. 1. Challenge to Order No. 24/DMB/PSA/2022 dated 08.04.2022 of District Magistrate, Baramulla-respondent No. 2 herein, whereby one Nisar Ahmad Ganie son of Mohd Akbar Ganie resident of Krankshivan, District Baramulla (herein after referred to as “detenue”) has been placed under preventive detention, must succeed for following reasons: 2. The grounds of detention make reference to case - FIR No. 50/2020 under section 18, 20 ULA (P) Act, 4/5 Explosive Substance Act, 7/25 A, at Police Station Sopore, having been registered against detenue. The involvement of detenue in the aforementioned case appears to have weighed heavily with detaining authority while making detention order. The counter affidavit filed by respondents does not make any reference that the documents in question were supplied to the detenue at the time of execution of detention order or immediately thereafter. The grounds of detention as also counter affidavit do not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case were ever supplied to detenue. It is pertinent to point out that the Detaining Authority, in the grounds of detention, after detailing background, in which aforesaid case was registered against detenue, proceeds to opine “however, your activities have posed a potential threat to the maintenance of security of the State.” The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents, in their counter affidavit, have not controverted the plea that the said material including the dossier was not furnished to detenue. It appears that the detenue was already in custody and there was no likelihood of him to be enlarged on bail, as he had not even applied for grant of bail, therefore, the impugned detention order reflects non-application of mind. In this regard reference is made to the Judgment titled G.M. Shah vs. State of Jammu and Kashmir, 1980 AIR 494. 3. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to detenue. 3. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to detenue. It is only after the detenue has all the said material available, that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehensions, as regards activities of detenue, are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Harikisan vs. State of Maharashtra and Others, (1962) Supp. 2 SCR 918 and Abdul Karim vs. State of West Bengal, (1969) 1 SCC 433 . 4. Article 22(5) Constitution of India provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, to make a representation against his detention. Article 22(5) of the Constitution and Section 13 of the Act, thus makes it obligatory for Detaining Authority to provide detenue an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are his apprehended activities that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention. 5. In the instant case the detenue is alleged to have contact with cadres of TRF affiliated with Lashkar-e-Toiba (Let) terrorist outfit upon whose motivation the detenue started working with them as Over Ground Worker. The detention order thus suffers from non-application of mind on part of detaining authority and cannot stand legal scrutiny. 6. 5. In the instant case the detenue is alleged to have contact with cadres of TRF affiliated with Lashkar-e-Toiba (Let) terrorist outfit upon whose motivation the detenue started working with them as Over Ground Worker. The detention order thus suffers from non-application of mind on part of detaining authority and cannot stand legal scrutiny. 6. Viewed thus, the petition is allowed and detention order No. 24/DMB/PSA/2022 dated 08.04.2022, passed by the District Magistrate, Baramulla-respondent No. 2, directing detention of Nisar Ahmad Ganie son of Mohd Akbar Ganie resident of Krankshivan, District Baramulla, quashed. 7. The respondents in view of quashment of detention order are stripped of any authority to detain the detenue under order No. 24/DMB/PSA/2022 dated 08.04.2022. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered under Order No. 24/DMB/PSA/2022 dated 08.04.2022. 8. Disposed of. Record be returned to the concerned against the receipt.