IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No. 465 of 2016 [ENTITY] Petitioners [ENTITY] and ors. Respondents !Mr. [ENTITY], Advocate ^Mr. [ENTITY], GA Honble Mr. Justice [ENTITY], Judge Date: 09/05/2017 : J U D G M E N T :
1. The Instant Habeas Corpus petition has been filed by the petitioner, challenging the order of detention bearing No. 147/DMB/PSA/2016 dated 30.09.2016, passed by District Magistrate, Baramulla.
2. In the grounds of detention, it is stated that detenue is 40 years old, an illiterate working as labour in his native village, Palhallan Rajpora. It is stated that during the recent unrest of 2016, detenue got involved with anti-national elements and indulged in stone pelting incidents at various areas of Pattan including National Highway Palhallan, thereby causing serious disturbance to the law enforcement agencies. One such incident happened on 10.09.2018 for which FIR No. 232 of 2016 was registered in Police Station Pattan. It is further stated that again on 23.09.2016 detenue was part of unruly mob and caused damage to various Government and private vehicles plying on National Highway at Palhallan. In this regard, FIR No. 247/2016 stands registered in Police Station, Pattan. It is stated that in order to deter the detenue from indulging in activities which are prejudicial to the maintenance of public order, he was detained under the provisions of [ACT].
3. Learned counsel for the detenue states that the detention of the detenue is bad on two main counts, firstly, the relied upon documents for detaining the detenue have not been served on the detenue and, therefore, his right to make an effective representation has been affected. The second ground of challenge to the detention order is that in terms of communication dated 30.09.2016, though the detenue has been informed of his right to make a representation to the Government, however, no right has been given to the detenue to make a representation to the Detaining Authority, thereby infringing his right guaranteed by the [ACT].
4. Per contra, counter has been filed by the respondents, stating that whatever material was required to be furnished to the detenue stands furnished to him in the form of grounds of detention.
5. There is no material to show that relied upon documents were furnished except the statement as above.
6. With regard to the first issue i.e. non-supply of relied upon documents, the same was considered by this Court in [CASE NUMBER] dated 28th February, 2017, wherein this Court, at Paragraph No.5, has observed as under:
5. In this case, the right of the detenue to make a meaningful representation to the competent Authority against his detention order has been affected because from the grounds of detention it is evident that two FIRs registered against the detenue are primarily the reasons for which the respondents have detained the detenue under the provisions of the [ACT], and the said relied upon documents for detaining the detenue have not been supplied to him, therefore, this Court has no hesitation to hold that the detention is bad on this ground alone.
7. The Honble Supreme Court in case titled [PRECEDENT], held as follows:-
27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon documents, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone.
28. Our [ACT] provides adequate safeguards under [SECTION] to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other material relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.
8. Hence, the detention order is bad for non-supply of relied upon documents.
9. The second contention i.e. denial of representation to the detaining Authority merits consideration in light of the decision of this Court rendered in [CASE NUMBER], in case titled [PRECEDENT] Paragraph Nos. 5 to 7 whereof are reproduced as under:
5. It is pleaded that neither the detention order nor the aforesaid intimation in terms of [SECTION] of the [ACT], makes it clear that detenue will be entitled to make a representation to the detaining authority. Prejudice to the detenue is pleaded stating that his right to make effective representation to the detaining authority who has issued the detention order is denied.
To buttress this argument, learned counsel for the detenue relied upon the decisions of this Court in Bashir Ahmad Sheikh v. [ENTITY] & Ors., 2011 (1) JKJ HC 82 and Shabir Ahmad Malik v. [ENTITY] & Ors. 2011 (1) JKJ HC 171. Further reliance is also placed on the decision of the Honble Supreme Court in the case of [PRECEDENT], where provisions of [SECTION], [SECTION] of the [ACT], were considered in the light of the plea that the detaining authority did not provide an opportunity to the detenue to make a representation to the Detaining Authority and therefore, it was held to be bad.
6. Considering the language used in [SECTION] of the [ACT], the Honble Supreme Court held that if the detention order is passed by an Officer other than the State Government the right to make representation to the said detaining authority cannot be taken away. The reliance was placed on the provisions of [SECTION] of the [ACT]
7. In this case also the detention order has been passed by the District Magistrate, however, right to make a representation to that authority has not been granted, however, it is specifically mentioned that representation is to be made to the Government. Thereby detenue has been put to great prejudice as he is unable to make a representation to the said authority.
10. There is no indication that detenue has a right to make a representation to the Detaining Authority.
11. In view of the above legal infirmity, the impugned detention order is liable to be set aside. Accordingly, the instant Habeas Corpus petition is allowed, order of detention bearing No. 147/DMB/PSA/2016 dated 30.09.2016, is, hereby, quashed. The respondents are directed to release the detenue, namely, [ENTITY] S/o [ENTITY] R/o Palhallan Raipora Pattan, District Baramulla, from preventive custody forthwith, if not required in any other case.
([ENTITY]) Judge [ENTITY] 09.05.2017 Bir