Jammu & Kashmir High Court – Srinagar Bench
Umer Kabir Mir vs Ut Of J&K & Ors on 2 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU &KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 28.02.2025
Pronounced on: 02.04.2025
WP(Crl) No. 204/2023
UMER KABIR MIR ...PETITIONER(S)
Through: - Mr. Z. A. Qureshi, Sr. Advocate, with
Ms. Moonisa, Advocate.
Vs.
UT OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Zahid Qais Noor, GA
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the instant petition, veracity and legality of the detention
order No.23/DMB/PSA/23dated 12.05.2023, issued by District
Magistrate,Pulwama (for brevity “detaining authority”) has been
challenged. In terms of the aforesaid order, Umer Kabir Mir (for short
“detenue”) has been placed under preventive detention and lodged in
Central Jail, Kothbalwal, Jammu.
2) The petitioner has contended that the Detaining Authority has
passed the impugned detention order mechanically without
application of mind, inasmuch 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
WP(Crl) No.204/2023 Page 1 of 7
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.
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 security of the
State.It is pleaded that the detention order and grounds of detention
along with the material relied upon by the detaining authority were
handed over 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. It has been
further contended that the detenue was informed that he can make a
representation to the government as well as to the detaining authority
against his detention. It is further claimed in the reply affidavit that all
statutory requirements and constitutional guarantees have been
fulfilled and complied with by the detaining authority. That the order
has been issued validly and legally. The respondents have placed
reliance on the judgment of the Supreme Court in Hardhan Saha v.
State of W.B (1975) 3 SCC 198. The respondents have produced the
WP(Crl) No.204/2023 Page 2 of 7
detention record to lend support to the stand taken in the counter
affidavit.
4) I have heard learned counsel for parties and perused the record.
5) 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 was not furnished the translated
version of the material which formed the basis of the
grounds of detention to enable him to make an
effective representation against his detention(II) That the grounds of detention are vague, on the basis
of which it was not possible for the petitioner to
make an effective representation.
6) So far as the first ground of challenge is concerned, a perusal of
the record produced by the learned counsel for the respondents reveals
that the detenue is a semi-literate person. Thus, he would not be in a
position to understand the contents of the grounds of detention. The
record also suggests that the translated copies of grounds of detention
have not been supplied to the detenue. Therefore, right of making an
effective representation against the detention order has been rendered
nugatory in this case, resulting in infringement of Constitutional right
of the petitioner guaranteed under Article 22(5) of the Constitution.
7) The service of the grounds of detention on the detenue isa very
precious constitutional right and the object behind the same is to
enable the detenue to file an effective representation. It will be an
WP(Crl) No.204/2023 Page 3 of 7
empty formality to supply the grounds of detention to the detenueunless he is in a position to understand the same. In my aforesaid view
I am fortified by the judgments rendered by the Supreme Court in the
case of Chaju Ram vs. The State of Jammu & Kashmir, AIR 1971
SC 263 and Smt. Raziya Umar Bakshi Vs. Union of India, AIR 1980
SC1751.
8) The detention record produced by the learned counsel for the
respondents contains a copy of Execution Report, perusal of which
shows that the grounds of detention have been read over and
explained to the detenue by one Inspector Latief Shabnum of DPL,
Pulwama. It is the case of the respondents that the said executing
official has read over and explained the grounds of detention to the
detenue. For supporting this contention, it was incumbent on the
respondents to place on record a duly sworn affidavit of the said
official, but no such affidavit is available in detention record. To
eradicate all the doubts, it was incumbent on the part of the person,
who did the exercise of handing over the documents and conveying
the contents thereof to the detenue, to file an affidavit in order to
attach a semblance of fairness to his actions. Support, in this behalf,
can be taken from the law laid down by the Supreme Court in the
cases of State Legal Aid Committee, J&K vs. State of J&K &
others, AIR 2005 SC 1270, Lallubhai Jogibhai Patel vs. Union Of
India & Ors, AIR 1981 SC 728 and the law laid down by this Court
WP(Crl) No.204/2023 Page 4 of 7
in the case of Mohammad Shaban Chopan vs. State and another,2003 (II) S.L.J 455.
9) Next it has been contended by learned counsel for the petitioner
that the grounds of detention are vague, inasmuch as there is no
mention of the particulars of alleged terrorists, whom he was
allegedly harbouring and transporting from one location to other.
10) On perusal of the detention record produced by learned counsel
for the respondents, the ground projected regarding vagueness of the
averments made in the grounds of detention, appears to be forceful. In
the grounds of detention, there is no mention of the particulars of the
places and the identity of the terrorists, whom the petitioner was
allegedly harbouring and transporting from one place to other. The
particulars of the period when the detenue is alleged to have
harboured and transported the alleged terrorists are also not mentioned
in the grounds of detention. Thus, the grounds, being vague and
lacking in material particulars, the detenue could not have made an
effective representation against his detention.
11) A Division Bench of this Court in the recent case titled “Imran
Rashid Rather vs. UT of J&K” 2024 LiveLaw (JKL) 351 has,
while deliberating upon the effect of vagueness of the grounds of
detention on the subjective satisfaction of the detaining authority,
observed as under:-
WP(Crl) No.204/2023 Page 5 of 7
“Therefore, this Court holds that vague and non-
specific grounds of detention firstly, violates the
fundamental right to life and personal liberty of the
detenue under article 21 of the constitution as it
summarily curtails the liberty of the citizen based on
the subjective satisfaction of the executive which is
an exceptional power as against the general law
relating to arrest and detention. Secondly, it deprives
the detenue of giving a specific rebuttal to the
grounds of detention which may satisfy the detaining
authority or the Government that his detention is
unlawful and compels him to answer the grounds of
detention as “it is incorrect” or “it is false” etc.
Thirdly, vague and generalised grounds in the order
of detention, smacks of arbitrariness on the part of
the detaining authority rendering the subjective
satisfaction arrived at as violative of article 14 of the
constitution and fourthly, vague and non-specific
grounds raise the impression that the same has
been done deliberately in order to deprive the detenu
of giving a precise rebuttal. Malafide in fact may be
difficult to establish as they must be pleaded with
specific facts, but the lack of bonafides 1State of
Bihar Vs. P.P. Sharma,1992 Supp(1) SCC 222,
paragraph 49 – State of Punjab Vs. Gurdial Singh,
(1980) 2 SCC 471, paragraph 9 -Pooja Batra Vs.
Union of India and others, (2009) 5 SCC 296,
paragraphs 18,40 and 41 may be presumed where
the executive act results in the deprivation of
personal liberty from a detention order based on
vague grounds. In such cases, the lack of bonafides
is to be presumed due to a cavalier or casual
exercise of the authority to detain the citizen without
any specific ill will or personal animosity. The lack of
bonafides is on account of failure to take due care
and act without introspection, blindly on the report of
the SP without insisting on supporting material which
justifies the deprivation of liberty.”
12) From the above analysis of the law, it is manifest that
vagueness of grounds of detention strikes at the root of the
subjective satisfaction of the detaining authority thereby vitiating the
order of detention. On this ground alone, the impugned order of
detention is liable to be set aside.
WP(Crl) No.204/2023 Page 6 of 7
13) 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.
14) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
02.04.2024
“Bhat Altaf-Secy”
Whether the order is reportable: Yes/No KARAM CHAND 2025.04.02 17:12 WP(Crl) No.204/2023 I attest to the accuracy and Page 7 of 7 integrity of this document
[ad_1]
Source link