Constitutional Right to Make a Representation arises from Adequate Furnishing of Material Forming Basis of Detention: High Court Of Jammu And Kashmir At Srinagar

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 27.12.2021 Pronounced on: 27 .01.2022 WP(Crl.) No.35 2021 AHTISHAM UL HAQ BHAT ...PETITIONER(S) Through: Mr. Syed Musaib Advocate GOVERNMENT OF J&K &ANR. Through: Mr. Hakeem Aman Ali Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE By the medium of instant petition petitioner has challenged legality and veracity of the detention order No.04 DMB PSA of 2021 dated 03.03.2021 issued by District Magistrate Bandipora for brevity “Detaining Authority”) whereby Shri Ahtisham ul Haq Bhat son of Late Gh. Nabi Bhat resident of Chittaybandy Aragam Tehsil and District Bandiporahas been placed under preventive detention and directed to be lodged in Central Jail Srinagar. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind and that the Constitutional and Statutory 2WP(Crl.) No.35 2021 procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been furnished to the. The respondents in their counter affidavit have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure that the grounds of detention were read over to the detenue that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit. I have heard learned counsel for parties and I have also gone through detention record. Learned counsel the petitioner while seeking quashment of the impugned order projected various grounds but the main ground that has prevailed during discussion are that the detenue has been disabled from making an effective 3WP(Crl.) No.35 2021 representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention have not been supplied to him. On perusal of the detention record produced by learned counsel for the respondents the ground regarding non supply of relevant material appears to have substance as the said record suggests that whole of the relevant material has not been supplied to the detenue. The execution report in the record reveals that the detenue has been supplied only 02 leaves comprising copy of grounds of detention. Thus the detenue has not been provided the copy of dossier and the copy of the FIR No.30 2020 for the offences u s 18 39 of ULA(P) Act of P S Aragam which form the basis of the detention order. This goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously the petitioner has been hampered by non supply of the relevant material in making an effective representation against his detention before the concerned authority Advisory Board. Non furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra orsThahira Haris etc. etc. Vs. Government of 4WP(Crl.) No.35 2021 Karnataka & Ors and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others” 3 SCC 440. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention is therefore unsustainable. Accordingly the same is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The record as produced be returned to the learned counsel for the respondents. “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No 

Summary: Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention, as was considered by the HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR, before a bench consisting of Hon’ble Justice Mr. Sanjay Dhar, in the matter of Ahtisham-Ul-Haq Bhat vs. Government of J&amp;K and Anr. [WP(Crl.) No.35/2021], on 27.01.22. By the medium of instant petition, petitioner has challenged legality and veracity of the detention order dated 03.03.2021, issued by District Magistrate, Bandipora (“Detaining Authority”) whereby Shri Ahtisham ul, resident of Chittaybandy Aragam Tehsil and District Bandipora (“detenu”) has been placed under preventive detention and directed to be lodged in Central Jail, Srinagar. Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been furnished to the detenu. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main ground that has prevailed during discussion are that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention have not been supplied to him. The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&amp;K Public Safety Act. It has been contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit The Court noted that on perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as the said record suggests that whole of the relevant material has not been supplied to the detenue. It was noted that the execution report in the record reveals that the detenue has been supplied only 02 leaves comprising copy of grounds of detention. Thus, it was held that the detenue has not been provided the copy of dossier and the copy of the FIR for the offences u/s 18, 39 of ULA(P) Act of P/S Aragam, which form the basis of the detention order. It was held that this goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously, the petitioner has been hampered by non-supply of the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board. In light of several precedents, the High Court held that non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. It was observed that the cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention was, therefore, held unsustainable. Accordingly, the same was quashed. The detenue was directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.