Mohammad Yousuf Ganai vs Government Of J&K And Ors

Sanjay Dhar, J

The petitioner has challenged Order No. 16/DMB/PSA of 2021 dated 20.10.2021 issued by the District Magistrate, Shopian whereby he has been taken into preventive custody in order to prevent him from acting in any manner prejudicial to the maintenance of public order.

It is contended in the petition that while detaining the petitioner, the respondents have not followed the constitutional and statutory safeguards inasmuch as the petitioner has not been furnished whole of the material relied upon by the respondents for framing the grounds of detention against him, as a result of which, the petitioner has been hampered in making effective representation against the impugned order of detention. It has been further submitted that the detaining authority while framing the grounds of detention has not derived subjective satisfaction as the grounds of detention are virtually the xerox copies of the police dossier.

It has also been contended that the grounds of detention are vague, irrelevant and non-existent. It is further contended that the petitioner was already in custody when the impugned order of detention was passed and as such, there were no compelling reasons for the respondents to pass the impugned order of detention. Lastly, it has been contended that the incident on the basis of which the petitioner has been taken into preventive custody are stale in nature and have no proximity to the order of detention.

The respondents have contested the petition by filing their counter affidavit. In their counter affidavit, it has been submitted that all the constitutional and statutory safeguards have been adhered to before detaining the petitioner. It is further submitted that the detaining authority has, after going through the material on record, derived subjective satisfaction before framing the grounds of detention which are specific and clear. It has been contended that this Court cannot exercise its judicial review in respect of subjective satisfaction derived by the detaining authority. Reference in this regard has been placed on judgment of Supreme Court in case of Haradhan Saha Vs. State of West Bengal reported in (1975) 3 SCC 198.

The respondents have submitted that the activities of the petitioner were highly prejudicial to the maintenance of public order and as such, the respondents were compelled to pass the impugned order of detention. It is also contended that the respondents have supplied whole of the material on the basis of which, the grounds of detention were formulated. It is further pleaded that even while in jail, the petitioner continued to instigate the jail inmates, which compelled the respondents to pass the impugned order of detention. The respondents have produced the detention record to lend support to their contentions.

I have heard learned counsel for the parties and perused the material on record including the detention record.

Although, the petitioner has urged a number of grounds challenging the detention order, yet during the course of arguments, the main thrust of the learned counsel for the petitioner was on the ground that the respondents have not furnished whole of the material which formed basis of the grounds of the detention.

A perusal of the detention record shows that the aforesaid ground urged by the learned counsel for the petitioner appears to be forceful. In the record of detention document styled as “receipt of grounds of detention and other relevant record” is available. According to this document, the respondents have furnished copy of the detention= one leaf, notice of detention =01 leaf, grounds of detention=04 leaves, copy of dossier=nil and copies of statement of witness and other relevant document=nil (total six pages). The document bears signatures of the petitioner.

From the reading of the aforesaid document, it is clear that only copies of the detention order, notice of the detention and ground of detention have been provided to the petitioner. Copy of the dossier submitted by the Police authority on the basis of which, the grounds of detention have been formulated which has become basis of the impugned order of detention, has not been supplied to the petitioner. A perusal of the grounds of detention reveals that it bears reference to as many as 26 FIRs. The receipt stated to have been executed by the petitioner clearly shows that copies of none of these FIRs have been furnished to the petitioner. In absence of copies of these FIRs and in absence of copy of the police dossier which are the basis of the grounds of detention, it was not possible for the petitioner to make effective representation against the order of detention. Thus the vital constitutional and statutory safeguards available to the detenue i.e, the petitioner herein, have been infringed which renders the impugned order of detention unsustainable in law.

For the foregoing reasons, the petition is allowed and the impugned order bearing No. 16/DMB/PSA of 2021 dated 20.10.2021 issued by the District Magistrate, Shopian is quashed and the respondents are directed to set the petitioner at liberty, if not, involved in any other case. The detention record has been returned to the learned Dy. AG in the open Court.

Disposed of as above.