Javaid Ahmad Sofi vs State Of J&K & Anr

1) By the medium of this petition, veracity and validity of the order of detention bearing No.DMB/PSA/74/2019 dated 14.09.2019, issued by District

Magistrate, Budgam (for brevity “Detaining Authorityâ€), has been assailed. In terms of the impugned order, Shri Javaid Ahmad Sofi @ Judge son

of Mohammad Ramzan Sofi resident of Parabagh Rawalpora, Srinagar, has been placed under preventive detention and lodged in Central Jail,

Srinagar.

2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has

been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been

urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of

detention has not been provided to the detenue who is a semi-literate person. Petitioner has gone to contend that he has not been informed as to

before which authority he had to make a representation.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and 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 parties and I have also gone through detention record.

5) The main ground urged by the learned counsel for the petitioner is that the constitutional and statutory procedural safeguards have not been

complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him.

6) A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the

petitioner on 18.09.2019. Report of Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the

signature of petitioner and according to it warrant (01 leaf), notice (01 leaf), grounds of detention (04 leaf), dossier (04 leaves) and copy of FIRs (04

leaves), in total 14 leaves, have been supplied to him.

7) In the grounds of detention reference has been made to case FIR Nos.229/2017, 69/2018, 60/2018 and 362/2018. It is also mentioned in the grounds

of detention that there are statements of witnesses recorded under Section 161 Cr. P. C during the investigation of these FIRs which show the

involvement of detenue in the commission of offences which are subject matter of investigation in those FIRs. It is clear from the execution report,

which forms part of the detention record, that copies of statements of witnesses recorded under Section 161 Cr. P. C have not at all been supplied to

the detenue and obviously he has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a

result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record.

Furnishing of material including statement of witnesses is a necessary requirement for enabling the detenue to make an effective representation

against the order of detention. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of

Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad

Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and othersâ€​, (1982) 3 SCC 440.

8) In view of aforesaid discussion, it is clear that the respondents have failed to observe the mandatory constitutional and statutory safeguards in the

case of petitioner and, as such, the impugned order of detention cannot be sustained in law.

9) The other ground urged by the petitioner is that there has been non-application of mind on the part of the Detaining Authority. In the instant case

the grounds of detention are more or less a Xerox copy of the dossier. This contention finds support from the material on record. The grounds of

detention, in this case are, in fact, a replica of dossier with interplay of some words here and there. This exhibits non-application of mind and in the

process deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its

own mind. It cannot simply reiterate whatever is written in the dossier. In my aforesaid view, I am fortified by the judgment of the Supreme Court in

the case of Jai Singh and ors vs. State of J&K (AIR 1985 SC 764).

10) From a perusal of the aforesaid observations of the Supreme Court, it is clear that the ground of detention and the dossier, if in similar language, go

on to show that there has been non-application of mind on the part of the Detaining Authority. As already noted, in the instant case, it is clear from the

record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non-application of mind on the

part of the Detaining Authority. The impugned order of detention is, therefore, unsustainable in law on this ground also.

11) For the afore-stated reasons, the petition is allowed and the order of detention bearing No. DMB/PSA/74/2019 dated 14.09.2019, issued by

District Magistrate, Budgam, 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 case(s) registered against him.