Srinagar Jan 16: The High Court of Jammu & Kashmir and Ladakh struck down a detention order against a Srinagar man, who was booked under Public Safety Act (PSA) last year, while observing that non-supply of material to the detainee renders the detention order “illegal and unsustainable.”
Justice Moksha Khajuria Kazmi quashed a detention order against Arif Ahmad Sheikh of Parimpora, Srinagar while observing that grounds of detention does not reflect the date and year of the activities alleged against the detenue for which he has been put under “preventive” detention, as such, “are vague and unsustainable.”
Justice Kazmi directed the respondents to set the detenue at liberty immediately, “provided he is not required in any other case.”
The petitioner challenged the detention order passed by District Magistrate, Srinagar, on April 07, 2022 on the ground that the material relied upon including dossier have not been furnished to him to enable him to make an effective representation against his detention.
The petitioner through counsel Salih Pirzada submitted before the court that the grounds of detention are “vague, indefinite and cryptic”, inasmuch as there is no specific allegation against the detenue.
“However, respondents make mention of FIR No. 47/2017, registered in Police Station, Zakura, Srinagar but the said FIR does not specify as to how the detenue is involved in the said FIR,” he said.
He contended that the detenue stands already bailed out in the said FIR by the Court of Additional Sessions Judge TADA/POTA, Srinagar on May 12, 2021.
“Further, the allegations made in the grounds of detention have no nexus with detenue and detaining authority has not given any reasonable justification to pass impugned order of detention,” counsel Pirzada said.
The court while allowing the plea relied on a Supreme Court judgment in a case titled ‘Abdul Latief Abdul Wahab Sheikh v. B.K. Jha’, wherein it was held that it is only the procedural requirements, which are the only safeguards available to the detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of the detaining authority.
Justice Kazmi recorded that in the present case, the procedural requirements have not been followed and complied by the respondents in letter and spirit and resultantly, the impugned detention needs to be quashed.
The court noted that on the basis of dossier the detaining authority has drawn its satisfaction that with a view to prevent detenu from acting in any manner ‘prejudicial” to the security of the State, it was necessary to detain him under necessary provisions of law.
“So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by the detaining authority,” the court said.
Justice Kazmi underscored that the grounds of detention, gives reference to various alleged activities of the detenue that appears to have weighed with detaining authority, while making detention order.
Kazmi pointed out that the detention record also does not indicate that dossier and other connected material were ever supplied to detenue, on the basis whereof the detention order has been passed.
“The aforesaid material, thus, assumes importance in the facts and circumstances of the case. It is only after all the said material was made available to the detenue that he could make an effort to convince detaining authority and thereafter the government that their apprehensions vis-à-vis his activities are baseless and misplaced,” the court said.
If, however, the detenue is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order, the single-judge bench said.
“The failure on the part of the detaining authority to supply the material, relied at the time of making the detention order, to the detenue, renders the detention order illegal and unsustainable,” the court held while quashing the detention order.
