FAROOQ AHMAD DAR Vs. STATE OF J&K

JUDGEMENT

(1.) CHALLENGE in this petition is to order No.DMB/PSA/203 of 2010 dated 25th September 2010, of District Magistrate, Budgam respondent No.2 herein, whereby one Shri Farooq Ahmad Dar son of Abdul Aziz Dar resident of Dardpora Tehsil Budgam District Budgam (herein after referred to as detenue) has been placed under preventive detention. The petitioner is wife of detenue and thus interested in his life and liberty and competent to maintain the petition.

(2.) THE petitioners case, as set out in the petition, is that the detenue was, without any cause or justification, apprehended on 13th September 2010, whereafter detention order No.DMB/PSA/ 203 of 2010 dated 25th September 2010, was slapped upon the detenue. THE respondents are stated to have ignored to provide material, relied upon by Detaining Authority to order detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of Detention are stated to be vague, non- existent and unfounded.

(3.) THE grounds of detention make reference to case - FIR No.403/2010 under section 147,148,149,188,427,336 RPC; FIR No.405/2010 under section 148, 149, 188, 336, 307, 435, 332 RPC; FIR No.406/2010 under section 147, 148, 149, 336,427, 188, 332, 342, 436, 392, 120-B RPC; FIR No.408/2010 under section 147, 148, 149, 336, 427, 435, 353, 188, 307 RPC, at Police Station Budgam, to have been registered against the detenue. THE involvement of detenue in the aforementioned case(s) appears to have heavily weighed with detaining authority while making detention order. THE record does not indicate that copies of aforementioned First Information Report(s), statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case(s), were ever supplied to detenue. It is pertinent to point out that the Detaining Authority in Grounds of Detention, after detailing background, in which aforesaid case was registered against detenue, proceeds to opine It becomes, therefore, necessary to detain you under PSA with a view to preventing you from indulging in the activities which are prejudicial to the maintenance of Public Order. THE material, mentioned above, thus assumes significance in the facts and circumstances of the case. THE respondents, in their counter affidavit, have not controverted the plea that the said material was not furnished to detenue. THE detention record made available by learned Deputy Advocate General reveals that none of the documents referred to in the detention order was supplied to the detenue. It needs no emphasis, that the detenue 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 Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. THE failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass versus District Magistrate (AIR 1982 SC 1315); Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others (AIR 1999 SC 3051); Union of India versus Ranu Bhandari (2008, Cr. L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris versus State and Others (AIR 2009 Supreme Court 2184).