Union Territory Of J&K vs Aurang Zab Khan

Moksha Khajuria Kazmi, J

This Letters Patent Appeal, (LPA) has been preferred by the appellant-Union Territory of J&K against the judgment dated 1st August, 2022, rendered by the learned Single Judge in a Habeas Corpus petition [WP (Crl) No.201/2022], whereby the detention order No. 06-DMG-PSA-2021 dated 22.10.2021, passed by the District Magistrate, Ganderbal, by virtue of which respondent-Aurang Zab Khan, had been placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978 and was ordered to be lodged in Central Jail, Srinagar, has been quashed and the detenue-respondent was directed to be released from the preventive custody forthwith.

Brief facts:

The appellant-respondent therein challenges the judgment dated 1st August, 2022, on the grounds that the respondent-detenue was in contact with one Pakistani based local militant Lateef Khan @ Sajad of HM outfit. The respondent-detenue went to Pakistan Abbotabad on his valid documents in order to meet his sister Gul Begum wife of Lateef Khan @ Sajad, and after his return it was learnt that the detenue-respondent was giving information about the movement of army and other security agencies to the said terrorist (Lateef Ahmad Khan). The detenue-respondent is motivating/radicalizing the youth of his area to join the terrorist groups and is continuing to instigate/radicalize the youth of Ganderbal area as well. It has also been learnt that the detenue-respondent has started working as OGW for the terror outfit TRF and is emerging a threat to the security of the country, especially to the U.T of J&K. It had been averred that the detention order of the detenue-respondent has been passed by the Detaining Authority after taking into consideration the material forwarded by the Police concerned and after deriving subjective satisfaction that the preventive detention of the detenue-respondent has become imperative to prevent him from acting in any manner prejudicial to the security of the country.

It is also urged that the detention order has been quashed by the learned Single Judge solely on the count that documents/material on which the detention order was passed, has not been supplied to the detenue-respondent at the time of execution of the detention warrant, while as, fact of the matter is that all the documents/material were supplied to the detenue-respondent.

We have heard learned counsel for the parties and have gone through the judgment impugned in this appeal.

The learned counsel for the appellant has primarily raised an issue that the detenue-respondent is involved in illegal activities which are highly prejudicial to the security of the country/ U.T. of J&K. It has been further argued that on the basis of the activities of the detenue, Detaining Authority, after its satisfaction and reasonable apprehension, that the activities of the detenue are highly prejudicial to the security of the State/Nation and there is also likelihood/apprehension that if the detenue is released, he may resort to activities prejudicial to the security of the State/U.T, therefore detained the detenue under the provision of J&K Public Safety Act, 1978, but the learned Single Judge has failed to appreciate all these facts while passing the impugned judgment.

On the other hand Mr. G. N. Shaheen, learned counsel for the detenue-respondent, while defending the impugned judgment has submitted that the judgment has been rendered by the learned Single Judge on well founded grounds. He has submitted that the material relied upon by the appellant while framing the detention order against the detenue has not at all been furnished to the detenue, resultantly he could not make any effective representation against the detention order.

Perusal of the impugned judgment reveals that the learned Single Judge has dealt with the pleadings of the parties and has also gone through the record, produced by appellants and has observed as under:-

“. The record of detention produced by the respondents does not contain any document evidencing the receipt of material by the petitioner. The only document which is available in the detention record in this regard is the affidavit of the executing official wherein it is provided that the detenue has been supplied the warrant, notice of detention, grounds of detention and other relevant material. In the absence of any receipt executed by the petitioner, the contents of the said affidavit cannot be relied upon. Thus, it cannot be stated that the petitioner has been supplied the relevant material. Obviously, he has been hampered by non-supply of relevant material in making an effective representation before the Advisory Board, as a result whereof his case appears to have been considered by the Advisory Board in the absence of his representation. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).

In this context, we are of the opinion that non-supply of relevant documents to the detenue prevented him from making an effective representation against his detention which in itself forms a ground to declare the detention order illegal. The right of making a representation flows from the Constitution of India. In support, we are fortified with the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra: AIR 1999 SC 3051 and Shri Lallaubhai Jogibhai Patel vs. Union of India and others- (1981) AIR (SC) 728.

According to the learned counsel for the appellant, all the relevant material/documents were supplied to the detenue, however, on examination we find that in execution report that only six leaves have been furnished to the detenue, i.e., warrant, notice of detention, grounds of detention but the execution report and the affidavit sworn in by the Executing officer nowhere reflects that the dossier on which the Detaining Authority has relied upon while passing the detention order, have ever been furnished to the detenue. Therefore, in whichever way we look at this issue, there has been non-compliance of the constitutional safeguards on the part of the Detaining Authority which vitiates the detention order.

In view of above, we do not find any illegality, perversity in the judgment dated 1st August, 2022, passed by the learned Single in WP (Crl) No. 201/2022.

The LPA is accordingly, dismissed. No costs.