Serhan Abass Sheikh vs State And Others

1 Impugned in this petition is an order of detention issued by the District Magistrate, Kishtwar (for short “detaining authorityâ€) bearing No.

202/DM/K of 2019 dated 31.05.2019 whereby the petitioner has been detained under Section 8(2) of the J&K Public Safety Act,1978 ( for short

“PSAâ€​).

2 Before adverting to the grounds of challenge urged in this petition, it would be necessary to take note of the factual antecedents which have led to

the passing of the detention order by the detaining authority. As is gatherable from the record, pursuant to the dossier of the activities of the petitioner

supplied by Sr. Superintendent of Police Kishtwar vide his No.Conf/Detention/05/7651-54/C dated 30.05.2019, the detaining authority, after taking

note of the activities the petitioner had been indulging in, arrived at the satisfaction that the substantive law had failed to desist the petitioner from

carrying out his activities which are prejudicial to the security of the State and, therefore, it was necessary to keep the petitioner under preventive

detention.

3 In the grounds of detention, the detaining authority noted that during the year 2018, the petitioner had established contact with a Pakistan based

person on whatsapp No.8492822652 and demanded one pistol with rounds for waging war against the lawfully established Government. That apart, a

case FIR No. 222/2017 under Sections 307/353 RPC stood registered against the petitioner on 03.11.2017. The allegation against the petitioner in the

aforesaid FIR is that he, while being on his Motor Cycle bearing No.JK17/1955, was intercepted at a traffic naka near Police Station Kishtwar and

was asked to produce the documents of the Motor Cycle, but the petitioner, instead of producing the same, assaulted upon the naka party with a Toka

with criminal intention to murder the cops. Similarly, on 07.12.2018, reliable information was received at Police Station Kishtwar that the petitioner

was working as an enemy agent for ISI in District Kishtwar and was supplying photographs of the security forces deployed in the District Kishtwar to

ISI of Pakistan. On the basis of this report, FIR No. 307/2018 dated 07.12.2018 under Section 3 EAO was also registered in Police Station Kishtwar.

There is another FIR i.e FIR No. 150/2016 registered under Sections 341/323/354/504 RPC in Police Station Kishtwar on the basis of a complaint

received from a girl student of 10th class, who was allegedly harassed by the petitioner. On the basis of the material and the activities indulged in by

the petitioner, the detaining authority appears to have formulated his satisfaction that with a view to prevent the petitioner from indulging in the

activities prejudicial to the security of the State, it is necessary to put him under preventive detention. The order of detention has been approved by the

Government.

4 As is apparent from the record, the matter was referred to the Advisory Board for its opinion and pursuant to the opinion rendered by the Advisory

Board, impugned order of detention was confirmed by the Government initially for a period of six months vide Government Order No. Home/PB-

V/957 of 2019 dated 04.07.2019 which has further been extended for a period of six months vide Government Order No. Home/PB-V/210 of 2019

dated 30.11.2019 which period would expire somewhere in May 2020.

5 The impugned order of detention is assailed by the petitioner primarily on the following grounds:

(i) That the detaining authority cannot fix the time limit for detention as the same lies in the domain of the Government who has to take such decision

on the basis of the opinion rendered by the Advisory Board;

(ii) That the order impugned suffers from total non-application of mind as the detaining authority has not shown any compelling reason as to why the

impugned order of detention was required to be passed despite the fact that the petitioner was already in jail in connection with FIR No. 307/2018; and

(iii) That the copies of the FIRs and the other material relied upon in the grounds of detention were never supplied to the petitioner which impacted

adversely his right to make effective representation to the Government.

6 The respondents have filed the counter affidavit and have vehemently refuted the allegations of the petitioner. It is pleaded that given the nature of

activities the petitioner had been indulging in, the detaining authority was of the opinion that with a view to prevent him from the activities, in any

manner, prejudicial to the security of the State, it was necessary to put the petitioner under preventive detention. The reference was invited to the

allegations contained in the grounds of detention to support the aforesaid submissions. It has further been submitted that all the material relied upon in

the grounds of detention was duly served upon the detenu, but he chose not to file any representation. It is further pleaded that the case of the

petitioner, after obtaining approval from the Government, was placed before the Advisory Board and pursuant to the opinion rendered by the Advisory

Board, the Government took a conscious decision to place the petitioner in preventive detention initially for a period of six months which period was

later on extended for a further period of six months.

7 Having heard learned counsel for the parties and perused the record, I am of the view that the order impugned is not sustainable in law and,

therefore, deserves to be quashed.

8 From the perusal of record, it clearly transpires that the petitoner was only served with order of detention and grounds of detention (four leaves

only), whereas the other material which is strongly relied upon by the detaining authority in the detention order viz. copies of FIRs registered in Police

Station Kishtwar have not been supplied to the detenu. Non furnishing of relevant material which is relied upon in the grounds of detention vitiates the

order of detention. That apart, I also find that the order of detention suffers from total non application of mind.

9 It is true that the respondents have relied upon as many as three different FIRs registered against the petitioner in the Police Station Kishtwar but

the detaining authority has not shown its awareness as to whether the detenu was arrested in the aforesaid FIRs; whether any application for bail was

moved by the detenu or whether the Court ever granted or refused the bail. The plea of the petitioner that he was arrested in FIR No. 307/2018 and

was refused bail by the competent Court is not rebutted by the respondents in their reply affidavit.

10 In the aforesaid backdrop, it was necessary for the detaining authority to indicate the compelling reasons to place the petitioner under preventive

detention when he was already under arrest in case FIR No. 307/2018 and the bail moved by him was rejected by the competent Court of law.

11 For the foregoing reasons, I find merit in this petition and, accordingly, the same is allowed. The order of detention is quashed. The detenu shall be

released from the preventive detention forthwith, provided he is not required in any other case.

Detention record be returned to learned counsel for respondents.