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2023 DIGILAW 661 (JK)

Adil Afzal Lone v. UT of J&K

2023-10-21

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner through the medium of this petition has impugned the order of detention bearing No.DMS/PSA/144/2021 dated 07.03.2022 issued by District Magistrate, Srinagar-respondent No.2. 2. The petitioner, who claims to have been arrested on 02.03.2022, has impugned the order of detention, inter-alia, on the following grounds : (I) That the allegations made in the grounds of detention are vague and non-existent, on which no prudent person can make a representation. The allegations have no concern with the petitioner and the same have been fabricated by the police just to justify the illegal detention of the petitioner. (II) That the petitioner was neither arrested or detained in connection with FIR No.40/2021, 01/2022 nor he was in custody in the year 2018 and 2019 pursuant to the directions of the Executive Magistrate. (III) That as per the grounds of detention, the petitioner was in custody in FIR No.01/2022 and there was every likelihood of his being enlarged on bail but the petitioner had never applied for bail anywhere. (IV) That the relevant material relied upon by the detaining authority has not been provided to the petitioner which incapacitated him to make an effective representation against his detention. (V) That the petitioner also submitted a representation to the respondent No.2 but neither the same was considered nor any material was furnished to him as requested in the representation, so that an effective representation could be made before the Government as well as before the Advisory Board. 3. The reply stands filed by the respondents wherein it has been stated that the petitioner was detained pursuant to the detention order No.DMS/PSA/144/2021 dated 07.03.2022 issued by District Magistrate, Srinagar and all the statutory requirements and constitutional safeguards have been fulfilled by the detaining authority. The detaining authority has passed the order of detention after deriving subjective satisfaction in the matter. The grounds of detention, order of detention as well as entire material relied upon by the detaining authority were provided to the petitioner, well within the statutory period as prescribed by Section 13 of the J&K Public Safety Act. The detention warrant was executed by the Executing Officer, ASI Mehraj Din and the petitioner was handed over to the Superintendent District Jail, Baramulla, for lodgement. The contents of the detention order, warrant of detention and the grounds of detention were read over to the petitioner in the language which he fully understood. The detention warrant was executed by the Executing Officer, ASI Mehraj Din and the petitioner was handed over to the Superintendent District Jail, Baramulla, for lodgement. The contents of the detention order, warrant of detention and the grounds of detention were read over to the petitioner in the language which he fully understood. The petitioner was also informed about his right of making a representation to the detaining authority and to the Government against his detention. The Government vide order dated 11.03.2022 has also approved the impugned detention order and the Advisory Board also has opined that there is sufficient cause for detaining the petitioner, as is evident from the order dated 04.05.2022. It is also submitted by the respondents that the filing of representation by the petitioner is a matter of record. 4. Mr. Wajid Haseeb, learned counsel for the petitioner argued that no material relied upon by the detaining authority was provided to the petitioner and the name of the petitioner nowhere figured in FIR No.40/2021 and also he was never arrested in the said FIR. He further submitted that the petitioner was never arrested in FIR No.01/2022 which has been mentioned in the grounds of detention. 5. Per contra, Mr. Sajad Ashraf, GA, submitted that the detention order was passed after taking into consideration the illegal activities of the petitioner and the procedural requirements as provided under the J&K Public Safety Act and the Constitution of India have been complied with by the respondents while passing the impugned detention order. 6. Heard and perused the detention record produced by learned counsel for the respondents. 7. The perusal of the record reveals that the detention order was issued on the basis of the dossier submitted by SSP, Srinagar. In the grounds of detention, a reference has been made to FIR No.01/2022. It has been simultaneously stated by respondent No.2 that “whereas you are presently under judicial custody in case FIR No.01/2022 and it is very likelihood of you being getting enlarged on bail from the said case, making it necessary to invoke preventive measures against you”. The perusal of the dossier submitted by the SSP concerned reveals that there is no whisper about FIR No.01/2022. The perusal of the dossier submitted by the SSP concerned reveals that there is no whisper about FIR No.01/2022. Further, a perusal of FIR No.40/2021 under Sections 147, 148, 336, 307 and 188 IPC of Police Station Pantha Chowk reveals that the name of the petitioner does not figure in the said FIR. What was the material before the District Magistrate to show that the petitioner was involved in the said FIR, is not forthcoming from the record. Also, the allegations that the petitioner is involved in drug trafficking and peddling are also vague as no specific details of alleged indulgence of the petitioner in drug trafficking and peddling have been mentioned in the grounds of detention. More so, the perusal of the record of District Magistrate concerned reveals that in the said record there is only copy of the FIR No.40/2021. The FIR No.01/2022, the orders under Section 107/151 of the Cr.P.C. for the year 2018 and 2019 and entry in Registry No.11 part 1 vide order dated 27.02.2022, as reflected in the grounds of detention, are also not available in the record. It appears that the respondent No2 has simply acted as a post office and has put a stamp of approval on the dossier forwarded by the SSP, Srinagar, without satisfying himself in respect of the alleged activities attributed to the petitioner necessitating his detention under the Public Safety Act. On this ground alone, the detention order is required to be quashed. 8. Further a perusal of the execution report reveals that only detention warrant and grounds of detention have been provided to the petitioner. The material relied upon by the detaining authority in the form of FIR No.40/2021, order under Section 107/151 of the Cr.P.C. for the year 2018 and 2019 and entry in Registry No.11 part 1 vide order dated 27.02.2022 have not been provided to the petitioner. Further this Court finds that the respondents have not denied the receipt of representation submitted by the petitioner against his detention and have rather submitted in their response that the filing of representation is a matter of record. Further this Court finds that the respondents have not denied the receipt of representation submitted by the petitioner against his detention and have rather submitted in their response that the filing of representation is a matter of record. The copy of the representation placed on record by the petitioner bears the seal of the office of District Magistrate concerned and in the representation also, the petitioner had submitted that he was neither arrested in FIR No.40/2021 nor in the year 2018-2019 in any case at all by the Executive Magistrate in terms of Section 107 Cr.P.C. Once the petitioner had filed a representation, it was incumbent on the part of respondents to have considered and decided the said representation in accordance with law. Having not done so, the respondents have flouted the constitutional as well as statutory mandate and, accordingly, the detention order is not sustainable on this ground as well. 9. In view of the above, the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive detention forthwith, provided he is not involved in any other case. 10. The detention record be returned to learned counsel for the respondents.