Jammu & Kashmir High Court – Srinagar Bench
Owais Farooq Waza vs Union Territory Of J&K & Others Through on 27 December, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No.118/2023
Reserved on:12.12.2024
Pronounced on:27.12.2024
Owais Farooq Waza, Aged 22 years
S/o Farooq Ahmad Waza
R/o Mohalla Jamia, Tehsil Baramulla,
District Baramulla, through his father
Farooq Ahmad Waza F/o Owais Farooq
Waza; 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. Mr. Satinder Singh Kalla, AAG with
Ms. Rahella Khan, Assisting Counsel.
....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. 06
DMB/PSA/2023, dated 15.02.2023, for short impugned order, in terms
whereof the detenue Owais Farooq Waza S/o Farooq Ahmad Waza R/o
Mohalla Jamia, district Baramulla has been detained by respondent
WP(Crl) No.118/2023 Page 1 of 7
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 a resident of Baramulla, is stated to be a person
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 has significant potential
to motivate more youth towards terrorism in the valley. It is further
intimated 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, antisocial
element had involvement in the criminal cases registered against him
organizing and leanding unlawful demonstrations to create an
atmosphere of unrest in Baramulla town. The petitioner was
accordingly booked in case FIR No. 263/2016 for the commission of
offences punishable in terms of sections 307, 148, 149, 332, 336,
353, 120-B RPC 13 ULAP Act; and FIR No. 236/2021 for the
commission of offences punishable in terms of sections 13, 39, 40
ULAP Act, 420, 468, 471 IPC registered at Police Station Baramulla.
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 and lacks specific character; the order suffers
from non-application of mind; it does not specify as to how the ordinary
criminal law could not have been effective against the detenue; it does
not specify the compelling reasons for invoking the preventive laws
against the detenue; the detenue has not been furnished the requisite
material to enable him to file a representation against his detention; the
detenue was in custody when the detention order was issued; the
impugned order has been executed after a period of three years .
WP(Crl) No.118/2023 Page 2 of 7
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 No. 263/2016 for the commission of offences punishable in
terms of sections 307, 148, 149, 332, 336, 353, 120-B RPC 13 ULAP
Act; and FIR No. 236/2021 for the commission of offences punishable in
terms of sections 13, 39, 40 ULAP Act, 420, 468, 471 IPC registered at
Police Station Baramulla. The petitioner has been furnished the requisite
material and has been made to understand the grounds of detention in the
language that he understands. 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 two 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 two
grounds viz; i) the delayed issuance of the impugned order and, ii) the
non-supply of the entire material on the basis whereof the detention has
been ordered.
8. It appears from the perusal of the record that the detenue was involved in
FIR No. 263/2016 for the commission of offences punishable in terms of
sections 307, 148, 149, 332, 336, 353, 120-B RPC 13 ULAP Act; and
FIR No. 236/2021 for the commission of offences punishable in terms of
sections 13, 39, 40 ULAP Act, 420, 468, 471 IPC 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
WP(Crl) No.118/2023 Page 3 of 7
preventive detention on the basis of his involvement in case 263/2016 for
the commission of offences punishable in terms of sections 307, 148,
149, 332, 336, 353, 120-B RPC 13 ULAP Act; and FIR No. 236/2021 for
the commission of offences punishable in terms of sections 13, 39, 40
ULAP Act, 420, 468, 471 IPC, however, the detention order has been
admittedly issued in the year 2023 on 15 th February i.e. seven years and
two years later than the respective dates of registration of above said
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 eight 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 (04 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
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 beWP(Crl) No.118/2023 Page 4 of 7
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 the
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:
WP(Crl) No.118/2023 Page 5 of 7
“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.The respondents have further failed to show any live link and proximity
between the activities of the detenue and the detention order, rendering
the detention order unsustainable.
15. 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.
16.The petition succeeds and is allowed as such. The impugned order
bearing No. 06 DMB/PSA/2023, dated 15.02.2023, passed by respondent
No.2, is quashed and the detenue Owais Farooq Waza S/o Farooq Ahmad
Waza R/o Mohalla Jamia, district Baramulla is directed to be released
from the preventive custody forthwith if not required in any other case.
WP(Crl) No.118/2023 Page 6 of 7
17.The detention record be returned to the learned counsel for the
respondents against receipt.
18.Disposed of.
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
27.12.2024
“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.118/2023
authenticity of this document Page 7 of 7
15.01.2025 14:35
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