1 WP(Crl) No.799/2022 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … WP (Crl) No. 799/2022 Reserved on: 20.02.2025 Pronounced on: 24 .02.2025 Zahid Rashid Ganie, aged 20 years S/o Abdul Rashid Ganie R/o Methan Chanapora, Srinagar. ……. Petitioner(s) Through: Mr. Wajid Haseeb, Advocate Versus 1. Union Territory of J&K through Principal Secretary to Home Department, Civil Secretariat, Srinagar/ Jammu 2. District Magistrate, Srinagar 3. Sr. Superintendent of Police, Srinagar .…Respondent(s) Through: Mr. Jahingeer A Dar, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this writ petition, the petitioner prays for quashment of detention Order No.DMS/PSA/84/2022 dated 30.08.2022, passed by District Magistrate, Srinagar, whereby detenu, namely, Zahid Rashid Ganie S/o Abdul Rashid Ganie R/o Methan Chanapora, Srinagar, has been placed under preventive detention with a view to prevent him from acting in a manner prejudicial to the maintenance of Security of State, on the grounds made mention of therein. 2. The grounds of challenge, inter alia, stated and averred by petitioner in the instant writ petition are that the allegations made in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations inasmuch as the cases mentioned in grounds of detention have no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention; 2 WP(Crl) No.799/2022 that grounds of detention are replica of dossier and unequivocally reflect and show non-application of mind on the part of detaining authority and as a consequence of which impugned order of detention is liable to be quashed; the detaining authority has not furnished the material including dossier, relied upon by it, to detenu to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by detaining authority concerning involvement of detenu in alleged activities; that grounds of detention do not give details or particulars of terrorists to whom detenu is alleged to have met or of those who are alleged to have been given assistance by the detenu. 3. It is being also stated that while detention order was passed on 30.08.2022, but it was executed in March 2023, that is after a delay of more than two years and despite the fact that detenu was all along available for execution during this period, the impugned detention order was not executed. 4. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are prejudicial to the maintenance of security of State and that the activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. 5. I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents. 6. There is no plausible, cogent and material ground given by the respondents in their reply affidavit to rebut the contentions of petitioner raised by him in the petition on hand, to justify delay of six months between passing of impugned order of detention dated 30.08.2022, and its execution on 08.03.2023, which is also evident from perusal of Execution Report. Law in this regard is settled. Reference to this extent is made to Suresh Mahato v. The District Magistrate, Burdwan and others (175) 3 SCC 554; Bhawarlal Ganeshmalji v. State of Tamil Nadu (179) 1 SCC 465. The Supreme Court in a Petition for Special Leave to Appeal (Crl.) Nos.6683/2022 titled as Sushanta Kumar Banik v. State of Tripura and others, 2022 SCC Online SC 1333, has held that if there is unreasonable 3 WP(Crl) No.799/2022 delay between the date of the order of detention and actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the “live and proximate link” between the grounds of detention and the purpose of detention is snapped in arresting the detenu. When the present case is tested on the touchstone of law laid down by the Supreme Court in the abovementioned cases, undoubtedly, there is no cogent explanation coming to fore from perusal of grounds of detention with reference to the live-link between prejudicial activities and purpose of detention and resultantly impugned detention order is liable to be quashed. 7. Another contention of petitioner is that detenu has not been provided the material relied upon by detaining authority thereby infringing his right guaranteed under Article 22(5) of the Constitution. Perusal of detention record, inter alia, contains “Execution Report” and “Receipt of detention Papers”. It would be advantageous to reproduce relevant portion of “Execution Report” hereunder: “The detention order (01leaf), Notice of detention (01leaf) grounds of detention (03 leaves), Dossier of detention (Nil) Copies of FIR, Statements of witnesses and other related relevant documents (01leaf), (Total 06 Leaves) have been handed over to the above said detune at Central Jail Jammu Kot-Bhalwal on 08.03.2023…..” 8. It would also be appropriate to reproduce relevant portion of “Receipt of Grounds of Detention” herein: “Received copies of detention order (01leaf), Notice of detention (01leaf) grounds of detention (03 Leaves) Dossier of detention (Nil) Copies of FIR, Statements of witnesses and other related relevant documents (01leaf ) (Total 06 leaves)..….” Thus, it is unambiguously clear and evident from perusal of Execution Report and Receipt of grounds of detention that only six leaves have been given to detenu. 9. Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police, Srinagar, vide no.LGL/Det-PSA/2022/17273-76 dated [sic], detaining authority was 4 WP(Crl) No.799/2022 satisfied 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 detaining authority. The grounds of detention, when looked into, give reference to various alleged activities of detenu that appears to have weighed with detaining authority to make detention order. The detention record, as noted above, does not indicate that copies of dossier and other connected material was ever supplied to detenu, on the basis whereof impugned detention order has been passed. The aforesaid material assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu 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 failure on the part of the detaining authority to supply the material, relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. In this regard I may draw support from the law laid down in the cases of Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed AasiyaIndrabi v. State of J&K &ors, 2009 (I) S.L.J 219. 10. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has 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. In the present case, the procedural requirements, as discussed above, have not been followed and complied by the respondents in letter and spirit and resultantly, the impugned detention needs to be quashed. 5 WP(Crl) No.799/2022 11. For the foregoing reasons and discussion, the instant petition is disposed of and Detention Order No.DMS/PSA/84/2022 dated 30.08.2022, passed by District Magistrate, Srinagar, is quashed. As a corollary thereof, respondents, including the Jail Superintendent concerned, are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. 12. Detention record be returned to counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 24.02.2025 (Qazi Amjad, Secy) Whether approved for reporting? No QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document Srinagar 24.02.2025 14:32