Javid Ismail Bara vs UT Of J&K & Anr

Moksha Khajuri Kazmi, J

1) In the instant petition, impugned is the detention order bearing No.11-DMK/PSA of 2021 dated 17.10.2021, is challenged and sought to be quashed by the petitioner, the father of the detenue. In terms of said order, Javid Ismail Bara son of Mohammad Ismail Bara resident of Reddi Chokibal Tehsil Kralpora, District Kupwara (hereinafter referred to as the detenue), has been taken into preventive custody by invoking powers under Section 8 of the J&K Public Safety Act.

2) The challenged to the impugned order is made 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 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 stated in the counter affidavit that the detenue has been detained only after following due procedure; that the grounds of detention were read over and explained 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 grounds of non-supply of relevant material and non-application of mind on the part of detaining authority while passing the impugned detention order, 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 no FIR has been shown to have been registered against the detenue. However, a document under the heading “Acknowledgment of receipt of material” that is annexed with the detention record, suggests that 11 leaves of material comprising of detention order (01 leaf), Order of detention (01 leaf), grounds of detention (02 leaves), notice to the detenue (01 Leaf), dossier of activities (04 leaves), translated copies of order of detention, grounds of detention and notice in urdu version (03 leaves) have been furnished to the detenue. Surprisingly, no FIR shown to have been registered against the detenue in the grounds of detention. Besides, this the dossier of activities comprises of only three leaves, then how come 04 leaves have been provided to the detenue. This exhibit appears to be total non-application of mind on the part of the detaining authority, which casts serious doubt about the authenticity of the receipt. These facts go on to show that the document “Acknowledgment of receipt of material” appears to be a manipulated document and, as such, the same cannot be relied upon. Thus, the contention of the detenue that he has not been provided the relevant material appears to be well-founded. The aforesaid facts clearly show that there has been total non-application of mind on the part of the detaining authority which vitiates the impugned order of detention.

7) So far as the ground regarding vagueness of the grounds of detention is concerned, it appears that the assertions made in the grounds of detention are vague and lacking in material particulars as the detenue is shown to be involved in the attack on J&K Legislative Assembly, 2001, Parliament attack, 2016 Pathankote Air Base attack, 2016, attack on Uri Garrison of Indian Army and the Pulwama blast of 2019 etc, when fact of the matter is that there is not even a single FIR, registered against the detenue. On the basis of these vague allegations, the detenue could not have made an effective representation against his detention. Thus, there has been violation of safeguards provided under Article 22(5)of the Constitution of India. Thus, the detention order is rendered illegal and unsustainable. The aforesaid view is fortified by the judgments of the Supreme Court in the case of Jahangirkhan FazalKhan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265, Mohd. Yousuf Rather vs. State of J&K & Ors, 1979 4 SCC 370 and Piyush Kantilal Mehta vs. The Commissioner of Police, Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC) .

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.