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2023 DIGILAW 481 (JK)

Bilal Ahmad Hastiwala v. UT of J&K

2023-09-08

SANJAY DHAR

body2023
JUDGMENT : SANJAY DHAR, J. 1. The petitioner has challenged detention Order No. 07-DMG-PSA-2022 dated 12.4.2022, issued by District Magistrate, Ganderbal-respondent No. 2 (for brevity “detaining authority”). In terms of the aforesaid order, Bilal Ahmad Hastiwala (for short “the detenue”) has been placed under preventive detention and lodged in Central Jail, Jammu (Kotbhalwal), in order to prevent him from indulging in the activities which are prejudicial to the security of the country, particularly the UT of J&K. 2. The petitioner has contended that the detaining authority has issued the impugned detention order mechanically without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. It has also been contended that the representation of the petitioner against the impugned order of detention has not been considered. 3. Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they 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 whole of the material relied upon by the detaining authority has been furnished to the detenue and the same were read over and explained to him; that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit and that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention but despite that he has not chosen to file any representation. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4. I have heard learned counsel for parties and perused the 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 whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him. (II) That although a representation was submitted against the detention by the detenue through his brother before the respondents yet the same was not considered rendering the detention order unsustainable in law. 6. The first ground projected by the learned counsel for the petitioner 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 and the consequent order of detention, has not been furnished to him, appears to have substance. A perusal of the detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (04 leaves), dossier of detention (03), copies of FIR, statements of witnesses and other relevant documents (07 leaves), (total 16 leaves). If we have a look at the grounds of detention, it bears reference to as many as seven FIRs viz. FIR Nos. 23/2013, 13/2016, 28/2016, 31/2016, 34/2016, 42/2016 and 20/2018 of P/S Safapora. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said 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 seven leaves. 7. All this material would run in dozens of pages and it is impossible that all this material would be covered in only seven leaves. 7. 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. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board. 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. 8. It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham vs. State of Maharashtra and Others, AIR 1999 SC 3051 , Ram Krishan Bhardwaj vs. State of Delhi, AIR 1953 SC 318 , Shalini Soni vs. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241 and Thahira Haris vs. Government of Karnataka and Others, AIR 2009 SC 2184 . 9. The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents. 10. It has been specifically contended by the petitioner that he had made a representation against his detention through his brother, which, seemingly, has been received by the office of District Magistrate, Ganderbal, on 18.04.2022. The copy of the representation bears the seal and endorsement of the office of the District Magistrate concerned. The petitioner has specifically pleaded in ground (xi) of his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone un-rebutted as there is no denial to the same by the respondents in the counter affidavit. The petitioner has specifically pleaded in ground (xi) of his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone un-rebutted as there is no denial to the same by the respondents in the counter affidavit. The detention record does not suggest that the said representation has either been considered by the Government or placed before the Advisory Board. 11. The non-consideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah vs. State of Bihar and Others, 1979 (4) SCC 559 , would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under: “4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads: When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This Sub-Article provides, inter-alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution.” 12. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution.” 12. From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law. 13. Apart from the above, it appears that the petitioner has been subjected to preventive detention because of Shri Amarnathji Yatra that was to take place in the year 2022. Since the Yatra period is over long back, therefore, the reason for keeping the petitioner in preventive detention has vanished by now, thereby rendering the need for petitioner’s prevention detention unnecessary. 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 detention record be returned to the learned counsel for the respondents.