Reyaz Ahmad Bhat vs UT Of J&K & Anr

Sanjay Dhar, J

1) The petitioner has questioned in this writ petition the legality and validity of the order No.37/DMA/PSA/DET/2021 dated 17.10.2021, issued by respondent No.2-District Magistrate, Anantnag, under Section (8) of the J&K Public Safety Act (for brevity “Detaining Authority”) whereby Shri Reyaz Ahmad Bhat son of Late Abdul Salam Bhat resident of Chontpora Verinag District Anantnag (for short “detenue”) has been placed under preventive detention and directed to be lodged in Central Jail, Kotbhalwal Jammu.

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the Constitutional and Statutory procedural safeguards have not been complied with in the instant case.

It has been further urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. It has also been averred that the grounds of detention are vague and the same are mere assertions of the detaining authority on which no prudent man can make an effective representation against the detention.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It has been averred in the reply that the detaining authority has followed the provisions of J&K Public Safety Act and the detenue has been detained only after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents also produced the detention record 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 the detention record.

5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main thrust of challenge to the impugned order of detention is that the grounds of detention are vague and cryptic, inasmuch as the material particulars of the shooters of banned organization TRF, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention.

6) On perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. There is no mention of the particulars of the place, the identity of the persons alleged to have received support of the detenue and the particulars of the period in the grounds of detention. These grounds, being vague and lacking in material particulars, as such, the detenue could not make an effective representation against his detention, on the basis of these vague allegations. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution. Thus, the detention order is illegal and unsustainable. In my aforesaid view, I am 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.

7) For the foregoing reasons, the petition is allowed and the impugned order of detention is set aside. The respondents are directed to set free the detenue from the preventive custody forthwith provided he is not required in connection with any other case.

8) The record, as produced, be returned to the learned counsel for the respondents.