Ashiq Hussain Bhat vs Ut Of J&K & Anr

Sanjay Dhar, J

1) The petitioner has challenged detention order bearing No.DMS/PSA/08/2022 dated 07.04.2022, issued by respondent No.2. In terms of said order, Ashiq Hussain Bhat @ Hogard has been placed under preventive custody by invoking powers under Section 8 of the J&K Public Safety Act so as to prevent him from acting in any manner prejudicial to the security of the State.

2) The petitioner has challenged the impugned order on the grounds that the procedural safeguards prescribed under the J&K Public Safety Act have not been followed, that the grounds of detention are vague and based on conjectures; that there has been non-application of mind on the part of the detaining authority and that the detenue has not been furnished whole of the material forming basis of the grounds of detention.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and have stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for the parties and perused the detention record.

5) Though the petitioner has projected a number of grounds to throw challenge to the impugned detention order yet, during the course of arguments, the main thrust of learned counsel for the petitioner was on the ground relating to non-supply of whole of the material, which prevented him from making an effective representation against his detention.

6) From a perusal of the grounds of detention, which forms part of the detention record produced by the learned counsel for the respondents, it transpires that the document under the heading “Receipt of Grounds of detention & relevant record” that is annexed with the detention record, suggests that five leaves of material comprising of detention order (01 leaf), Notice of detention (01 leaf), grounds of detention (03 leaves) have been furnished to the petitioner.

7) If we have a look at the grounds of detention, it bears reference to FIR No.95/2021of P/S Harwan. It was incumbent upon the respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement in the FIR is shown, which has not been done. Even the copy of the dossier of detention has not been supplied to the petitioner. Besides this, from a perusal of the detention record, it transpires that the grounds of detention comprise only of two leaves. It is not understandable as to how three leaves comprising the grounds of detention have been provided to the petitioner. Thus, the contention of the petitioner that he has not been provided whole of the material appears to be well-founded. Thus, the impugned order of detention is rendered unsustainable in law on this ground alone.

8) For the foregoing reasons, this petition is allowed. The impugned order of detention is quashed. A direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case.

9) The record be returned back to the learned counsel for the respondents.