IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 24.12.2024 Pronounced on: 03.01.2025 WP(Crl.) No.61/2023 JAVAID AHMAD BEIGH ...PETITIONER(S) Through: - Ms. Suwaiba, Advocate. Vs. UNION TERRITORY OF J&K & ORS. …RESPONDENT(S) Through: - Mr. Mubashir Majid Malik, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) By the instant petition, the petitioner has assailed detention order No.158/DMS/PSA/2023 dated 24.01.2023, issued by District Magistrate, Shopian (for brevity “Detaining Authority”). In terms of the aforesaid order, Javaid Ahmad Beigh (“the detenue”), has been placed under preventive detention and lodged in District Jail, Baramulla, in order to prevent him from acting in a manner prejudicial to the security of the UT/Country. 2) The petitioner has contended that the detaining Authority has passed the impugned detention order without application of mind as the grounds of detention are mere reproduction of the dossier. It has been further contended that the procedural safeguards have not been complied with in the instant case. It has P a g e | 2 also been urged that whole of the material which formed basis of grounds of detention and the consequent order of detention has not been provided to the detenue and that there has been non- application of mind on the part of detaining authority while passing the impugned order 3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and the same were read over and explained to him. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. The respondents have produced the detention record in order to buttress the contentions raised in the counter affidavit. 4) I have heard learned counsel for the parties and perused the detention record. 5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but her main thrust during the course of arguments was on the following grounds: (I) The grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while formulating the grounds of detention. P a g e | 3 (II) That whole of the material forming basis of the grounds of detention has not been furnished to the detenue. 6) So far as first ground of challenge is concerned, there appears to be some merit in the same. It is clear from the perusal of the contents of the grounds of detention and the contents of the dossier that the grounds of detention are replica of the dossier with interplay of some words here and there. A perusal of both these documents would show that the District Magistrate has replaced the word “subject” with word “You” and added word “whereas” at the beginning of each para of the grounds of detention. Apart from this, there is hardly any significant difference in the words used in the police dossier and the grounds of detention. This exhibits non- application of mind on the part of detaining authority. In the process, the deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the police dossier. 7) The grounds of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. The similarity of contents of grounds of detention and police dossier in the instant case clearly exhibits mechanical functioning of the detaining authority, thereby making the impugned order of detention unsustainable in law. In my aforesaid view, I am supported by the P a g e | 4 judgment of the Supreme Court in the case of Jai Singh and ors. vs. State of J&K (AIR 1985 SC 764). 8) So far as the next ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received only grounds of detention consisting of three leaves. That means, copies of PSA warrant, notice of detention and order of detention have not been provided to the petitioner. Even the copy of the dossier of detention has not been supplied to the petitioner. 9) Thus, the contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non- supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. 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. 10) 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 P a g e | 5 part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. 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) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184). 11) In view of above discussion, the petition is allowed and the impugned order of detention, issued by respondent No.2-District Magistrate, Shopian, 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. 12) The detention record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar, 03.01.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 03.01.2025 12:53