FAYAZ AHMAD PAUL Vs. STATE OF J&K

JUDGEMENT

(1.) Impugned in this petition is the Order no.DMB/PSA/20 of 2019 dated 01.04.2019, passed by the District Magistrate, Budgam (for short 'detaining authority'), placing one Fayaz Ahmad Paul son of Abdul Gaffar Paul resident of Ompora Budgam (for brevity 'detenu') under the preventive detention to prevent him from acting in any manner prejudicial to the security of the State.

(2.) Counter affidavit has been filed by respondents, vehemently resisting the petition. The detention record has also been produced by the learned counsel for the respondents to substantiate the statements made in the reply affidavit.

(3.) Having heard learned counsel for parties and perused the file, it would be appropriate to have glimpse of the detention record, produced by the learned counsel for respondents, so as to ascertain as to whether the material, relied upon by detaining authority while issuing impugned detention order, has been furnished to detenu or not. The detention record, inter alia, contains an 'Execution Report' of the detention. Perusal thereof reveals that execution report has been signed by Executing Officer by ASI Bashir Ahmad No.190/GRPK (EXK.821674) DPL Budgam P/S Budgam, as also by the Taken-over Officer, viz. Dy. Superintendent, District Jail, Kathua. It also comes to fore that only seven leaves have been given to detenu and the material, viz. copies of FIRs; Dossier; copy of site plans; copy of seizure memos; copy of arrest memo; statement of witnesses; and other related documents, have not been furnished to detenu at the time of execution of detention order or immediately thereafter. Bare reading of impugned detention order divulges that Superintendent of Police, Budgam, vide his letter no.Legal/Dos/2019/148 dated 14.03.2019, produced the material record, such as dossier and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention make reference of as many as 08 cases, bearing FIR nos.310/2009; 261/2009; 575/2009; 115/2012; 102/2012; 339/2013; 188/2016; 277/2016, to have been registered against detenu. The involvement of the detenu in the aforesaid cases appears to have weighed with the detaining authority, while making the detention order. The record, as noted above, does not indicate that the copies of the aforesaid First Information Reports, the statements recorded under Section 161 Cr.P.C. and other material collected in connection with the investigation of the aforesaid cases, were ever supplied to the detenu. The abovementioned material, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis, that the 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 the detention order is based, is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehension concerning the activities of the detenu are baseless and misplaced. If the detenu is not supplied the material, on which the detention order is based, he cannot 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. While saying so, I draw the support from the law laid down in 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, (supra); and Syed Aasiya Indrabi v. State of J &K and ors, 2009 (I) S.L.J 219.