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Judgment
Javed Iqbal Wani, J
1) Challenge in this petition is thrown to the order bearing No.08/DMA/PSA/DET/2021 dated 26.02.2021, issued by District Magistrate, Anantnag(for brevity “Detaining Authority”) whereby Shri Zubair Ahmad Reshison of Abdul Aziz Reshiresident of AshajiporaAnantnag District Anantnag(for short “detenue”) has been taken into preventive detention and directed to be lodged in District Jail, Kathua.
2) It is being stated in the petition that the detenue is a law abiding andpeace loving citizen and has never involved in any subversive activityprejudicial to the public order or security of the State. The detenue isstated to have been arrested in the month of January 2021 in connection with FIR No.09/2021of Police Station Anantnag, and while being in custody therein the said FIR came to bedetained under preventivecustodyby therespondentsin termsofimpugnedorder andlodgedatDistrict Jail, Kathua.
3) The impugned order is being challenged on the grounds inter-alia thatdetenue was already incustody in case FIR No.09/2021 and thedetainingauthoritydespitehavingtheknowledgeofthesaidfactdetainedthe detenuewithoutspellingoutanycompellingreasonthereofinthe groundsofdetention,moreso,whenthere wasnopossibilityofthereleaseofthedetenuefromthecustodyonaccountof offences of the FIR.
4) It is being further urged in the grounds that the detenue had not beenprovided copies of the relevant material like copy of dossier, copy ofFIR, Statements under Section 161, 164-A Cr. PC, referred to in thegrounds thus depriving him to file an effective representation againsthisdetention.Thesaidfailureisstatedtohaveinfringedtheconstitutional right of the detenue guaranteed under Article 22 (5) oftheConstitutionof India.
5) Per contra, respondents in their reply affidavit filed in opposition tothe petition resist and controvert the contentions raised and groundsurged by the petitioner and have stated in their reply affidavit that theorder of detention is preventive and not punitive in nature, while it isbeing admitted by respondents that detenue was detained pursuant toimpugnedorder.
6) Itisbeingstatedthatallstatutoryrequirementsandconstitutional guarantees have had been fulfilled and complied with while detainingthedetenue.
7)Itisbeingnextstatedthatimpugnedorderwasexecutedby oneSI Mohammad Ashraf No.479/CID PID No.EXK-811421 of P/S Anantnagon 28.02.2021andthat the detenue was handed over to the Assistant Superintendent District Jail, Kathua,forlodgmentandthatthecontentsofdetentionorder/warrant and grounds of detention were read over and explainedto the detenue in the language which he fully understood and in lieuthereofthedetenuesubscribedhissignaturesontheexecutionreport/order.
8) It is being further stated that the detenue was well informed about theright of making his representation and that despite having received theentire material the detenue did not chose to make any representationagainst hisdetention.
9) It is being next stated that the Advisory Board after considering thematerial placed before it, in terms of Section 16 of the Act held thatthereissufficientcausefordetentionofthedetenue,whereuponreceipt of the said opinion of theAdvisory Board the Governmentconfirmed order of detention against the detenue. Respondents in theprocess are stated to have complied with all statutory, constitutionalprovisions and followed all requisite formalities without violating anyofthem.
10) It is pertinent and significant to mention here that as per the counsel for the petitioner, the detention order dated 26.02.2021 expired on 27.08.2021 where after the respondents extended the same in terms of extension order dated 23.08.2021 for a further period of six months and that the said extended order was not furnished to the petitioner. According to the learned counsel for the petitioner a copy of the same was provided to him by the counsel for the respondent today and that the grounds of challenge urged against the original detention order dated 26.02.2021 be treated as grounds against the extended order dated
23.08.2021 as well. Counsel for the respondent admits of the issuance of extension order and would contend that the response filed in opposition to the petition be treated as response to the grounds urged by the counsel for the petitioner against the extended detention order as well.
Heardlearnedcounselforthepartiesandconsideredthematter.
11) While dealing with the first contention/ground of challenge urged bythe petitioner qua non-recording of compelling reasons for detainingthedetenuewhenhewasalreadyincustody,itwouldbeappropriateto refer to the judgement of the Apex court in this regard passed incase titled as “Surya Prakash Sharma Vs. State of U.P and Others,reported in 1994 (3) SCC 195, wherein at Para 5 following has beennoticed andlaiddown: -
“5.Thequestionastowhetherandinwhatcircumstance s an order for preventive detention can bepassed against a person who is already in custody hashadbeenengagingtheattentionofthisCourtsinceitf irstcameupforconsiderationbeforeaConstitutionBenc hinRameshwarShawV.DistrictMagistrate,Burdwan(1 964)4SCR92:AIR1964SC334:(1964)1 Crl LJ 257. To eschew prolixity we refrain from detailingall those cases except that of DharmendraSuganchandChelawat V. Union of India(1990) 1 SCC 746: 1990SCC (Crl) 249: AIR 1990 SC 1196,wherein a threeJudge Bench, after considering all the earlier relevantdecisionsincludingRameshwarShawanswere dthequestionin thefollowing words(SCC754para 21:
“Thedecisionsreferredtoaboveleadtotheconclu sionthatanorderfordetentioncanbevalidly passed against a person in custody and forthat purpose it is necessary that the grounds ofdetentionmustshowthat(i)thedetainingauth ority was aware of the fact that the detenue isalreadyindetention;and(ii)therewerecompelli ngreasonsjustifyingsuchdetentiondespitethefa ctthatthedetenueisalreadyindetention. The expression „compelling reasons‟ inthe context of making an order for detention of aperson already in custody implies that there mustbe cogent material before the detaining authorityonthebasisofwhichitmaybesatisfiedt hat(a)thedetenueislikelytobereleasedfromcust odyin the near future, and (b) taking into account thenature of the antecedent activities of the detenue, itislikelythatafterhisreleasefromcustodyhewo uldindulgeinprejudicialactivitiesanditisnecessa ry to detain him in order to prevent himfromengaginginsuch activities.”
12) Perusalofthegroundsofdetention/orderofdetentionwouldmanife stlyreveal that the detaining authority has not drawn anysatisfactionasperthemandatelaiddownbytheApexCourtinthe judgment “Surya Parkash Sharma” supra, while passing theimpugned detention order against the detenue, so much so, therespondentshavealsofailedtoexpressanysuchcompellingreasons even in their reply affidavit as well. The impugned order,thus inlaw,doesnotsustain onthis countalone.
13) Coming to the second ground of challenge noted in the preceding paras, that the material which has formed the basis for passing of detention order has not been furnished to the petitioner. It is revealed upon perusal of the detention record that only two leaves consisting of copies of detention warrant and grounds of detention have been furnished to the detenue, which clearly shows that the copies of dossier, statements recorded under Section 161, 164-A Cr. P. C, referred to in the grounds of detention, have not been furnished to the detenue thereby depriving the detenue from making an effective representation against his detention. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India. Failure on the part of detaining authority to supply whole of the material relied upon by it at the time of passing impugned detention order renders the impugned order illegal and unsustainable. The aforesaid position is supported by the view taken by the Apex court in case titled asSophia GulamMohd. Bham v. State of Maharashtra &ors (AIR 1999 SC 3051), ThahiraHaris etc. etc. Vs. Government of Karnataka &Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440.
14) Further perusal of the record would reveal and suggest that in the grounds of detention, a Chinese pistol is stated to have been recovered from the detenue on the date of his arrest whereas, in the seizure memos, 30 rounds of AK-47 Rifle are stated to have been recovered from him.
This state of affairs reflects a complete non-application of mind by the detaining authority while drawing its satisfaction on the basis of material furnished to it by the sponsoring agency for the purposes of placing the detenue under detention. The impugned order on this ground as well is not sustainable under law.
15) In view of the aforesaid position obtaining in the matter the othergroundsurgedinthepetitionneednottobedealtwithandessentiallypaleint oinsignificance.
16) Viewed thus, in the context what has been observed, analyzed andconsidered in the preceding pars, instant petition is allowed andconsequent to which the impugned order of detention bearing No.08/DMA/PSA/DET/2021 dated 26.02.2021, read with extension order No. 661 of 2021 dated 23.08.2021 is quashed, with the directionthe respondents to release the detenue forthwith from preventivecustody,unless thedetenueis required inanyother case.
17) The record, as produced, be returned to the learned counsel for the respondents.