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Judgment
Puneet Gupta, J
The District Magistrate, Shopian by Order No. 132/DMS/PSA of 2022 dated 25.06.2022 has placed Irfan Ahmad Kuttay S/o Gulshan Ahmad Kuttay R/o Chattipora, Shopian under the preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the UT/State and has lodged in District Jail, Baramulla. It is this order, the father of the detenue is aggrieved of and seeks quashment of the same on the following grounds:
i) That the detaining authority has recorded its satisfaction only on the basis of police dossier and the documents relied by the detaining authority have not been provided to the petitioner.
ii) That there is non-application of mind by the detaining authority while passing the order.
iii) That the detenue also submits that earlier the detention order was passed and he was detained but he moved this Court and this Court vide judgment dated 31.05.2022 quashed the detention order but the District Magistrate without any rhyme or reason on 25.06.2022 detained the petitioner again under PSA in the same FIRs . The petitioner having been bailed out is not mentioned in the order.
The counter affidavit has been filed by the respondents stating that the detenue came to be detained under the provisions of the Act of 1978 validly and legally. All statutory requirements and constitutional guarantees have been fulfilled and complied with by the Detaining Authority. The Detaining Authority has passed order of detention after deriving subjective satisfaction in the matter. Grounds of detention, order of detention, as well as entire material relied upon by the detaining authority came to be furnished to the detenue well within statutory period provided under section 13 of the Act. In compliance to DM’s detention order, the warrant was accordingly executed by Executing Officer namely Ab. Hamid ASI No. ARP-891489 of P/S Shopian and detenue was handed over to Assistant Superintendent District Jail Baramulla, for lodgment. The detenue was also well informed about his right of making of representation to the detaining authority or to Government against his detention. The detenue despite having received the aforesaid entire material has not so far chosen to make any representation against his detention. The Government, Home Department vide order No. Home/PB-V/1420 of 2022; dated: 28.06.2022 approved the said detention order. Further, in terms of section 15 of the Act, the instant case was referred to Advisory Board for its opinion. The Advisory Board has, in terms of section 16 of Act, after considering the material placed before it, held that there is sufficient cause for the detention of the detenue in the instant case and accordingly Order No. Home/PB-V/1892 of 2022 dated: 16.08.2022 passed by government has confirmed the order of detention issued against the detenue.
Photo-copy of the record is provided by learned counsel for the respondents.
Learned counsel for the petitioner has raised argument that the petitioner was not provided all the documents which were required to be provided in pursuance to the detention order passed against him. The representation which he could have made before the Advisory Board/Government could not be made as the petitioner was not provided the requisite material. The detention order refers 03 FIRs, the last being of the year 2020, on the basis of which earlier detention order passed came to be quashed by this Court vide judgment dated 31.05.2022. Besides also in FIR No. 07/2020, the petitioner has been bailed out by the court of Special Judge (Designated Court under NIA) Anantnag, however mention whereof has not been made in the detention order. There is no co-relation between the alleged activities of the petitioner and the detention order passed by the detaining authority.
Per contra, learned counsel for the respondents submits that there was sufficient material for the detaining authority to pass fresh order of detention though the earlier one was quashed by this Court vide judgment dated 31.05.2022. The petitioner had earlier figured in three FIRs and continued with his alleged illegal activities It shows that the petitioner is indulging in the anti national activities and being threat to the security of the State. The petitioner was provided all the relevant material but he did not choose to file representation.
Heard learned counsel for the parties and perused the record.
The detention order passed by the respondents reveals three FIRs have been mentioned in the same. Perusal of the record reveals that while executing warrant of detention upon the petitioner, only three leaves have been provided to the petitioner. This fact is revealed from the receipt of the relevant record by the petitioner on 27.06.2022. Undoubtedly, the petitioner has been deprived of having requisite material with him which debarred him from making effective representation before the Advisory Board. The very fact that three FIRs stand mentioned in the grounds of detention and only 03 leaves have been provided to the petitioner shows that all the relevant material has not been provided to the petitioner in the matter. Providing of material to the petitioner is not mere formality which can be overlooked by this Court. It needs no reiteration that the petitioner was bound to be provided with all the relevant material by the respondents but has not been provided so and thus constitutional guarantee stands compromised and violated.
The Hon’ble Apex Court in the judgment rendered in the case “Sophia Gulam Mohd. Bham v. State of Maharashtra &Ors” (AIR 1999 SC 3051),has held 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
The submission of the petitioner that the order manifests non-application of mind on perusal of records appears to have substance. One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention having basis for passing the order of detention. In the order impugned, as passed by District Magistrate, the Magistrate has just recorded what has been forwarded by the Superintendent of Police and nothing more which shows that Detaining Authority has not sifted the material dossier while stating grounds of detention. Non-application of mind is evident. Invasion of personal liberty is not permissible when no cogent reason is forthcoming. The incidents related prior to passing of earlier order and in the second order of detention are for all intents and purposes no different. The fresh grounds supposedly forming opinion of detaining authorities for passing order are just an alibi for detaining the petitioner and that cannot be sustained in law. Right to life and liberty cannot be enchained to actions which are not justified. The purpose of preventive detention should appear to have been achieved from order when glossed through prism of law and if found wanting to conform to it the order cannot sustain.
In view of the above discussion, this Court is of the considered view that the order of detention bearing No. Order No. 132/DMS/PSA of 2022 dated 25.06.2022 is not sustainable in the eyes of law. Accordingly, the same is quashed. The petitioner is directed to be released from the custody provided if he is not required in any other case.