Jammu & Kashmir High Court – Srinagar Bench
Javid Ahmad Gojiri vs Union Territory Of J&K & Others Through on 2 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 176/2023 CrlM No. 1539/2024
Reserved on:19.12.2024
Pronounced on:02.01.2025
Javid Ahmad Gojiri, Aged 30 years
S/o; Abdul Rehman Gojiri
R/o; Mohalla Jamia, Tehsil Baramulla,
District Baramulla, through his father Abdul
Rehman Gojiri F/o; Javaid Ahmad Gojiri
R/o Mohalla Jamia, Distrct Baramulla
....Petitioners
Through:
Mr. S. T. Hussain, Sr. Advocate with
Ms. Nida Nazir, Advocate.
Vs.
1. Union Territory of J&K & Others through
Principal Secretary to Government, Home
Department J&K, Government, Civil
Secretariat, Srinagar/Jammu.
2. District Magistrate, Baramulla.
Through:
Mr. Hakim Aman Ali, Dy.AG.
....Respondents
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. The detenue through his father has filed the instant habeas corpus
petition to challenge and seek quashment of the order No.
31/DMB/PSA/2023, dated 08.05.2023, for short impugned order, in
terms whereof the detenue Javaid Ahmad Gojiri S/o Abdul Rehman
Gojiri R/o Mohalla Jamia, district Baramulla has been detained by
WP(Crl) No.176/2023 Page 1 of 7
respondent No. 2, under Public Safety Act, 1978 on a variety of grounds
taken in the memo of the petition.
2. Upon notice respondents have appeared and filed their counter affidavit
resisting the claim of the petitioner.
Brief Facts:
3. The petitioner is stated to be “deeply influenced by radical ideology”
and is associated with JeM militant outfit, which is considered to be
the most dreaded terrorist organization operating in the UT of Jammu
and Kashmir. It is also stated that the petitioner is nurturing deep
anti-national sentiments having main aim and objective to secede the
J&K from the Union of India and to annex it with Pakistan. It is
intimated that the detenue is also working as Over Ground Worker,
for the JeM militant outfit thereby providing logistic support to the
terrorists of JeM outfit operating in the area. It is stated that the
detenue has significant potential to motivate more youth towards
terrorism in the valley. It is further stated that the detenue has an “evil
ideology” which would foment trouble and was a threat to the
security of the Union Territory of Jammu & Kashmir creating a fear
psychosis in the minds of the people in that area and was stoking
secessionist sentiments in the valley. It is stated that the detenue
being an incorrigible, anti-social element had involvement in the
criminal cases registered against him organizing and leading
unlawful demonstrations to create an atmosphere of unrest in
Baramulla town. The petitioner was accordingly booked in case FIR
Nos. 29/2011 for the commission of offences punishable in terms of
sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the
commission of offences punishable in terms of sections 153, 120-B,
506 RPC and 91/2013 for the commission of offences punishable
under sections 188, 148, 149, 336, 307 RPC registered at Police
Station Baramulla. Subsequently, the detenue has been detained
under preventive detention in terms of the impugned order for his
activities prejudicial to the security of state.
WP(Crl) No.176/2023 Page 2 of 7
4. The petitioner has challenged the impugned order inter-alia on the
grounds that the order is violative of the fundamental rights of the
detenue; is vague, cryptic; the order suffers from non-application of
mind; the detenue has not been furnished the entire material to enable
him to file a representation against his detention; the detenue was in
custody when the detention order was issued.
5. Per contra the respondents in their counter affidavit have, while
refuting the allegations of the petitioner, stated that the detenue is
involved in case FIR Nos. 29/2011 for the commission of offences
punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC;
167/2012 for the commission of offences punishable in terms of
sections 153, 120-B, 506 RPC and 91/2013 for the commission of
offences punishable under sections 188, 148, 149, 336, 307 RPC
registered at Police Station Baramulla. The detenue has been
furnished the requisite material. The grounds of detention and other
allied material, on the basis whereof the detention order has been
issued, have been furnished to the detenue. The involvement of the
detenue in the acts, for which three FIRs have been registered, has
led to the subjective satisfaction of the detaining authority to detain
the detenue under preventive detention. The activities of the detenue
were found to be highly prejudicial to the security of the state,
therefore, preventive detention has been ordered.
6. Heard learned counsel for the parties, perused the detention record and
considered the submissions.
7. Learned counsel for the petitioner has mostly laid emphasis on the
grounds of non-supply of the entire material on the basis whereof the
detention has been ordered thereby preventing the detenue from making
an effective representation to the respondents against his detention.
8. It appears from the perusal of the record that the detenue was
involved in FIR Nos. 29/2011 for the commission of offences
punishable in terms of sections 307, 148, 149, 332, 336, 427 RPC;
167/2012 for the commission of offences punishable in terms of
sections 153, 120-B, 506 RPC and 91/2013 for the commission of
WP(Crl) No.176/2023 Page 3 of 7
offences punishable under sections 188, 148, 149, 336, 307 RPC
registered at Police Station Baramulla. and was under custody at the
time when the impugned detention order has been passed.
9. The detention record made available by the learned counsel for the
respondents reveals that the detenue has been ordered to be put under
preventive detention on the basis of his involvement in case FIR Nos.
29/2011 for the commission of offences punishable in terms of
sections 307, 148, 149, 332, 336, 427 RPC; 167/2012 for the
commission of offences punishable in terms of sections 153, 120-B,
506 RPC and 91/2013 for the commission of offences punishable
under sections 188, 148, 149, 336, 307 RPC registered at Police
Station Baramulla, however, the detention order has been admittedly
issued in the year 2023 on 8th May i.e twelve, eleven and ten years
later than the respective dates of registration of the FIRs despite the
detenue being in custody in connection with his involvement in the
FIRs supra.
10. The execution report forming part of the detention record would further
reveal that the detenue has been provided seven leaves in all comprising
detention order (01 leaf); notice of detention (01 leaf); grounds of
detention (02 leaves); dossier of detention (Nil); copies of FIR, statement
of witnesses and other related relevant documents (03 leaves). As per the
showing of respondents themselves the detenue has not been supplied the
copy of dossier which is an essential document forming basis of
subjective satisfaction of the detaining authority. The non-supply of such
an important document has certainly prejudiced the rights of the detenue
in as much as the detenue could not make an effective representation
against his detention.
11.The Supreme Court in case titled “State of Tamil Nadu vs. Abdullah
Kadher Batcha” reported as (2009) 1 SCC 333, has held that non supply
of any document is prejudicial to the case of the detenue. It would be
WP(Crl) No.176/2023 Page 4 of 7
profitable to reproduce relevant portion of paragraph-7 of the said
judgment herein:
“7…. While examining whether non supply of a document would
prejudice a detenu the Court has to examine whether the detenu
would be deprived of making an effective representation in the
absence of a document. Primarily the copies which form the ground
for detention are to be supplied and non supply thereof would
prejudice to the detenu. But documents which are merely referred
to for the purpose of narration of facts in that sense cannot be
termed to be documents without the supply of which the detenu is
prejudiced.”
12. The detenue has been prejudiced by non-supply of the copy of dossier as
the same has been relied upon by the detaining authority and a statutory
duty was cast on the detaining authority to make available such
document to the detenue to enable him to move an effective
representation against his detention. The infraction of statute has again
prejudiced the detenue to move a representation against the detention
which has consistently been held to be fatal for the
prosecution/respondents. In a case titled “Tahira Haris etc. etc. vs.
Government of Karnatka” reported as (2009) 11 SCC 438, the Supreme
Court has laid down the same principle. It would be profitable to
reproduce paragraphs 11 and 12 of the said judgment herein:
“11. More than half a century ago, the Constitution Bench of
this Court has interpreted Article 22(5) of the Constitution in Dr.
Ram Krishan Bhardwaj v. The State of Delhi and Ors. 1953 SCR
708 observed as under:
“5…….Preventive detention is a serious invasion of
personal liberty and such meager safeguards as the
Constitution has provided against the improper exercise of
the power must be jealously watched and enforced by the
Court. In this case, the petitioner has the right,
under article 22(5), as interpreted by this Court by
majority, to be furnished with particulars of the grounds of
his detention “sufficient to enable him to make a
representation which on being considered may give relief
to him.” We are of opinion that this constitutional
requirement must be satisfied with respect to each of theWP(Crl) No.176/2023 Page 5 of 7
grounds communicated to the person detained, subject of
course to a claim of privilege under clause (6) of article
22. That not having been done in regard to the ground
mentioned in sub-paragraph (e) of paragraph 2 of the
statement of grounds, the petitioner’s detention cannot be
held to be in accordance with the procedure established by
law within the meaning of article 21. The petitioner is
therefore entitled to be released and we accordingly direct
him to be set at liberty forthwith.”
12. The right which the detenu enjoys under Article 22(5) is of
immense importance. In order to properly comprehend the
submissions of the detenu, Article 22(5) is reproduced as under:
“22.(5). 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 Article of the Constitution can be broadly classified into two
categories: (i) the grounds on which the detention order is
passed must be communicated to the detenu as expeditiously as
possible and (ii) proper opportunity of making representation
against the detention order be provided.”
13. In view of the ratio laid down in the judgments supra the Supreme Court
has laid much emphasis on the fundamental right of the detenue as
envisaged in Section 22 (5) of the Constitution. The Supreme Court has
held that an inaction on the part of respondents to violate the safeguards
provided by the statute prejudices the rights of the detenue.
14. For all what has been said hereinbefore, the Court is of the considered
view that the safeguards provided by the statute have not been complied
with in the instant case and the detenue resultantly has been deprived of
his right to move a representation against his detention. The impugned
order further appears to have been issued on the basis of an activity
allegedly done by the accused detenue almost seven/two years before the
issuance of the detention order and nowhere do the respondents justify or
provide reasons for such delayed issuance of impugned order.
WP(Crl) No.176/2023 Page 6 of 7
15.The petition succeeds and is allowed as such. The impugned order
bearing No. 31/DMB/PSA/2023, dated 08.05.2023, is quashed and the
detenue Javaid Ahmad Gojiri S/o Abdul Rehman Gojiri R/o Mohalla
Jamia, Baramulla Tehsil/District Baramulla is directed to be released
from the preventive custody forthwith if not required in any other case.
16.The detention record be returned to the learned counsel for the
respondents against receipt.
17.Disposed of.
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
02.01.2025
“Shaista-PS”
Whether the judgment is reportable: Yes/No.
Whether the judgment is speaking: Yes
Shaista Rashid Shah
I attest to the accuracy and
WP(Crl) No.176/2023
authenticity of this document Page 7 of 7
15.01.2025 14:28
[ad_1]
Source link