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Judgment
Sanjay Dhar, J
1) Challenge in this petition is to the order No.65/DMS/PSA/2020 dated 27.06.2020, issued by District Magistrate, Shopian- respondent No.2 herein, in terms whereof, Gh. Geelani Gatoo S/o Ab. Aziz Gatoo R/o Malik Muhalla Shopian (hereinafter referred to as the detenue), has been ordered to be taken into preventive custody and lodged in Central Jail, Srinagar.
2) Respondents, on notice, appeared and filed counter affidavit wherein they have opposed the contentions raised in the petition.
3) Learned counsel for the petitioner has submitted that the impugned order has been passed in breach of statutory provisions and the law laid down by the Supreme Court from time to time. He has, in particular, referred to judgments of Hon'ble Apex Court Sophia Gulam Mohd. Bham. V. State of Maharashtra & ors (AIR 1999 SC 3051) and Rekha V. State of Tamil Nadu and anr reported in (2011) 5 SCC 244.
4) In opposition, learned counsel for the respondents has submitted that the order of detention has been passed in accordance with law and the procedural safeguards have been strictly adhered to.
5) Considered the rival submissions and also perused the material available on the file as also the detention records as produced by the learned counsel for the respondents.
6) Involvement of the detenue in the criminal cases i.e. FIR Nos.173/2012, 64/2014, 70/2014, 76/2014, 77/2014, 78/2014, 83/2014, 84/2014, 201/2016, 249/2016, 168/2017, 30/2018 and 36/2018 of P/S Shopian, referred in the grounds of detention, appears to have weighed heavily with the detaining authority while passing the detention order. Nothing has been brought on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161 Cr. P. C and other material collected during the course of investigation has been provided to the detenue. Rather the record produced by the respondents corroborates the fact that the material relied on by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. In the counter affidavit filed by the respondents, a mention about the supply of copies of grounds of detention, dossier and FIRs is made but there is not even a mention regarding supply of copies of statements of witnesses recorded under Sections 161/164-A Cr.P.C in the said affidavit. This supports the contention of the petitioner that whole material relied upon by the Detaining Authority while formulating the grounds of detention has not been supplied to him.
7) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Dhananjoy Dass v. District Magistrate, (AIR 1982 SC 1315), Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).
8) In Sophia Ghulam Mohd. Bham V. State of Maharashtra and others" (AIR 1999 SC 3051), the Supreme Court has 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 detenue 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 to the detenue 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."
1) In Ibrahim Ahmad Batti v. State of Gujarat, (1982) S SCC 440, the Supreme Court, while relying on its earlier judgment 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; Kamla Kanyalal Khushalani v. 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 Art. 22 (5) of the Constitution."
9) For the afore-stated reasons, the petition is allowed and the order of detention bearing No.65/DMS/PSA/2020 dated 27.06.2020, issued by District Magistrate, Shopian, is quashed. Further custody of the detenue shall be governed in accordance with the orders of the court of competent jurisdiction in connection with criminal cases registered against him.
10) The record, as produced, be returned to the learned counsel for the respondents.