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2023 DIGILAW 525 (JK)

Bilal Ahmad Ganie v. UT Of J. & K.

2023-09-19

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged detention order No.DMS/ PSA/11/2022 dated 07.04.2022, issued by District Magistrate, Srinagar-respondent No.2 (for brevity “detaining authority”). In terms of the aforesaid order, Bilal Ahmad Ganie @ Billa son of Abdul Rehman Ganie resident of Batapora, Pandach (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 State. 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 maintenance of public order. 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. 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. 4. The respondents have neither chosen to appear at the time of final hearing, nor have they produced the detention record. 5. I have heard learned counsel for petitioner and perused the material on record. 6. 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. (III) 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.48/2020 of P/S Soura but this fact has nowhere been mentioned in the grounds of detention. 7. 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 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. Nothing has been brought on record by the respondents to suggest that the material forming basis of the grounds of detention and the consequent order of detention has been supplied for the petitioner. 8. Thus, contention of the petitioner that 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. 9. 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. 9. 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 V. State of Maharashtra and others ( AIR 1999 SC 3051 ) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318 , Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. ( AIR 2009 SC 2184 ). 10. The next ground projected by the petitioner is that he had submitted representation against his detention but the same has not been considered by the respondents. 11. It has been specifically contended by the petitioner that he had made a representation against his detention through his father, which, seemingly, has been received by the office of District Magistrate, Srinagar, 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 (xii) of his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. 12. 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 Ors., 1979 (4) SCC 559 , would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:- “4. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 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.” 13. 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. 14. 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.48/2020 of P/S Soura. A copy of the order issued by the Additional Sessions Judge, TADA/POTA, Srinagar, on 08.09.2021 in this regard has been placed on record by the petitioner. A copy of the order issued by the Additional Sessions Judge, TADA/POTA, Srinagar, on 08.09.2021 in this regard has been placed on record by the petitioner. The non-mentioning of this important fact in the grounds of detention exhibits non-application 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 non-application 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 . 15. 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. 16. The detention record be returned to the learned counsel for the respondents.