Jammu & Kashmir High Court
Through:- Mr. Lawanya Sharma vs (I) Ut Of J&K on 19 December, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 91/2024
Reserved on: 12.12.2024
Pronounced on: 19.12.2024
(i) Khurshid Ahmed, Aged 57, .... Petitioner/Appellant(s)
S/o Nazar Hussain,
R/o Gursai, Tehsil Mendhar,
District Poonch.
Through his son
Waheed Ahmed, Aged 24,
S/o Khurshid Ahmed,
R/o Gursai Nala,
Tehsil Mendhar, District Poonch
Through:- Mr. Lawanya Sharma, Advocate.
V/s
(i) UT of J&K, .....Respondent(s)
Through Financial Commissioner
(Additional Chief Secretary)
Home Department,
Civil Secretariat, Jammu
(ii) The District Magistrate,
Poonch
(iii) Director General of Police,
Prisons Department, J&K
(iv) Inspector General of Police
(ADGP), Jammu Zone, Jammu
(v) SSP, CID (CI), Jammu
(vi) SSP, Poonch
(vii) Superintendent Central Jail,
Jammu.
Through:- Mr. Pawan Dev Singh, Dy. AG
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner has assailed the detention Order No. 14/DMP/PSA of
2024 dated 17.05.2024 issued by the District Magistrate, Poonch, in this
petition. By virtue of the impugned detention order, the District Magistrate,
Poonch, (hereinafter referred to as ‘Detaining Authority’) in exercise of
HCP No. 91/2024 Page 2 of 5
powers under Section 8 of the J&K Public Safety Act, 1978, has placed
Khurshid Ahmed (hereinafter referred to as ‘detenu’) in preventive custody
under the provisions of Public Safety Act to prevent him from acting in any
manner prejudicial to the Indian State as well as UT of J&K. This order of
detention has been challenged by the detenu through his son-Waheed Ahmed.
02. The detenu, aggrieved of the detention order, has challenged its legality
and validity, mainly on the grounds that; (i) the copy of the dossier has not
been provided to him or his family members, which has rendered the
detention order illegal; (ii) the grounds for detention impugned in this petition
essentially rest on a single basis, i.e., involvement of the detenue in FIR No.
02/2009 registered at Police Station Mendhar. Even in this FIR, the detenue
was not found guilty and was released under Section 169 of the Cr.P.C.,
rendering the detention order unsustainable; (iv) the provisions of the Code of
Criminal Procedure (CrPC) were sufficient to address the allegations against
the detenue in the instant case, but the respondents have detained the detenue
without any compelling justification. (v) the representation of the petitioner
has not been decided by the respondents till date. This delay in consideration
further undermines the validity of the detention order.
03. Mr. Pawan Dev Singh, learned Dy. AG, has filed the counter affidavit
and also produced the detention record. It is submitted by him that the
subjective satisfaction of the detaining authority in issuing the detention
order cannot be questioned based on the sufficiency of incriminating
material against the detenue. Given the prejudicial activities of the detenue,
his preventive detention was necessary to deter further illegal actions,
therefore, the detenu was detained vide order dated 17.05.2024 passed by the
HCP No. 91/2024 Page 3 of 5
District Magistrate, Poonch, in accordance with the provisions of Public
Safety Act. The procedural safeguards prescribed under the Public Safety
Act and other rights guaranteed to detenu under the Constitution of India
have been followed.
04. Heard learned counsel for the parties and perused the detention record.
05. Learned counsel for the detenu has raised number of grounds in support
of his contentions but during the course of arguments has laid stress on the
contention that the detenu was not provided all the material which formed
the basis of the grounds of detention.
06. Perusal of the detention record reveals that all the material relied upon
by the Detaining Authority while passing the order of detention has not been
provided to the detenu. The receipt of the grounds of detention indicates that
the detenu has been provided with the detention order (1 leaf), notice of
detention (1 leaf), grounds of detention (4 leaves), dossier of detention (nil
leaves), and copies of FIR, statements of witnesses, and other related
relevant documents (5 leaves), totaling 11 leaves. It is thus clear that the
detenu has not been provided with a copy of the dossier. The detention of the
detenu is based on the police dossier of the SSP, Poonch, which has not been
supplied to the detenu. The detenu must be made aware of what weighed
with the Detaining Authority in passing the order of detention in order to
make an effective representation.
07. The detenu has a right to make an effective representation, but such a
representation can only be made if the detenu is provided with all the
material in accordance with the rights available to him under Article 22(5)
of the Constitution of India. The failure on the part of the Detaining
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Authority to supply the required material has rendered the detention
illegal and unsustainable.
08. Article 22(5) of the Constitution of India provides that when any
person is detained, the Detaining Authority shall, as soon as possible,
communicate to the detenu the grounds on which the detention order has
been made and shall afford him the earliest opportunity to make an
effective representation against the order of detention. This right to make
a representation can only be exercised by the detenu if all the material
relied upon by the Detaining Authority in passing the order of detention is
provided to the detenu. To make an effective representation, the detenu
must know the facts of what weighed in the mind of the Detaining
Authority while passing the impugned order of detention.
09. In ‘Sophia Ghulam Mohd. Bham V. State of Maharashtra and
others‘, AIR 1999 SC 3051, the Hon’ble Apex Court observed as under:-
“…The right to be communicated the grounds of detention flows
from Article 22(5) while the right to be supplied all the material on
which the grounds are based flows from the right given to the
detenu to make a representation against the order of detention. A
representation can be made and the order of detention can be
assailed only when all the grounds on which the order is based are
communicated the detenu and the material on which those grounds
are based are also disclosed and copies thereof are supplied to the
person detained, in his own language…..”
10. In Ibrahim Ahmad Batti v. State of Gujarat, (1982) S SCC 440, the
Hon’ble Apex Court has, while relying on its earlier judgments Khudiram
Das v. State of W.B, (1975) 2 SCR 81; Icchu Devi Choraria v. Union of
India, (1980) 4 SCC 531; Shalini Soni v. Union of India, (1980) 4 SCC
544; Lulluabhai Jogibhai Patel v. Union of India,(1981) 2 SCC 427;
HCP No. 91/2024 Page 5 of 5
Kamla Kanyalal Khushalaniv. State of Maharashtra, (1981) 1 SCC 748
and Sunil Dutt v. Union of India, (1982) 3 SCC, in paragraph 10 of the
judgment, has held as under:
“Two propositions having a bearing on the points at issue in the
case before us, clearly merge from the aforesaid resume of decided
cases : (a) all documents, statements and other materials
incorporated in the grounds by reference and which have
influenced the mind of the detaining authority in arriving at the
requisite subjective satisfaction must be furnished to the detenu
along with the grounds or in any event not later than five days
ordinarily and in the exceptional circumstances and for reasons to
be recorded in writing not later than 15 days from the date of his
detention and (b) all such material must be furnished to him in a
script or language which he understands and failure to do either of
the two things would amount to a breach of the two duties cast on
the detaining authority under Article 22 (5) of the Constitution.”
10. In view of the aforesaid discussions and without adverting to the
other grounds raised in this petition, this petition is allowed and the
impugned detention Order No. 14/DMP/PSA of 2024 dated 17.05.2024,
passed by the District Magistrate, Poonch, under which detenu-Khurshid
Ahmed, S/o Nazar Hussain, R/o Gursai, Tehsil Mendhar, District Poonch, is
quashed. Accordingly, the respondents are directed to release the detenu from
the custody forthwith, provided he is not required in any other case.
11. Detention record be returned to the learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
Jammu:
19.12.2024
Michal Sharma/PSWhether the judgment is reportable : Yes
Michal Sharma
I attest to the accuracy and
authenticity of this document
Jammu
23.12.2024 11:08