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2024 Supreme(Online)(J&K) 1735
HIGH COURT OF JAMMU AND KASHMIR
MR. JUSTICE SANJAY DHAR, J
SAYAR AHMAD SHAH ALIAS SAYAR – Appellant
Versus
UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT) – Respondent
HCP 46 / 2024
Mr. M. Ayoub Bhat, Advocate; Mr. Hakim Aman Ali, Dy. AG.
Preventive detention is justified when prior measures fail to deter anti-national activities, and procedural safeguards are adhered to, ensuring the right to representation is upheld.
Headnote:(A) Constitution of India - Article 22 - Preventive Detention - Order of detention challenged on grounds of violation of constitutional guarantees and lack of material supplied to the detenue - Respondents contended that all safeguards were adhered to and the order was legally valid - Detention justified due to continued anti-national activities despite prior bookings for substantive offences. (Paras 1-10)
(B) Right to Representation - The petitioner was informed of his right to make a representation against the detention order, which was considered and rejected by the authority - Allegations in the grounds of detention were found to be specific and not vague. (Paras 5-9)
(C) Compelling Reasons for Detention - The court found that prior measures were insufficient to deter the petitioner from engaging in anti-national activities, justifying the preventive detention. (Paras 7-9)
Facts of the case:
The petitioner challenged a detention order issued to prevent him from acting prejudicially to the security of the State, claiming violations of his rights and lack of sufficient grounds.
Findings of Court:
The court upheld the detention order, finding that all legal procedures were followed and that the allegations were specific enough to warrant preventive detention.
Issues: The main issues included whether the petitioner was provided sufficient material for an effective representation and whether the grounds for detention were vague.
Ratio Decidendi: The court ruled that the detention was justified due to the petitioner's ongoing anti-national activities and that the procedural safeguards were adequately followed.
Result: Petition dismissed.
JUDGEMENT
1) Impugned in this petition is order of detention bearing No.12/DMP/PSA/24 dated 01.02.2024 issued by District Magistrate, Pulwama, whereby Sayar Ahmad Shah @ Sayar (the detenue) has been placed under preventive detention with a view to prevent him from acting, in any manner, prejudicial to the security of the State.
2) The petitioner has challenged the impugned order of detention on the grounds that the same is violative of constitutional guarantees; that the material forming basis of the grounds of detention has not been supplied to the detenue thereby curtailing his right to make an effective representation against impugned order of detention; that the petitioner has not been informed about his right of making a meaningful and effective representation to the detaining authority as well as to the government; that the allegations leveled in the grounds of detention are vague and that representation of the detenue against the order of detention has not been considered by the respondents.
3) The petition has been resisted by the respondents by filing a counter affidavit thereto. In their counter affidavit, the respondents have submitted that all the safeguards have been adhered to and complied with by the detaining authority and that the order has been issued validly and legally. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and that the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. It is further averred that the impugned detention order has been passed after following the due procedure of law. In order to buttress the contentions raised in the counter affidavit, learned counsel for the respondents has also produced the detention record.
4) I have heard learned counsel for the parties and perused the record.
5) The learned counsel for the detenu has laid much emphasis on the following grounds:
(I) That whole of the material that has been relied upon by the detaining authority while framing the grounds of detention has not been supplied to the petitioner;
(II) That the petitioner was already booked in substantive offences, as such, there were no compelling reasons for the detaining authority to take resort to preventive detention;
(III) That the representation of the petitioner against the impugned order of detention has not been considered;
(IV) That the grounds of detention are vague on the basis of which the petitioner could not have made an effective representation against the impugned order of detention.
6) So far as the first ground is concerned, if we have a look at the detention record, the petitioner has been provided 25 leaves, which include detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (04 leaves) and copies of FIR, statements of witnesses and other related documents (17 leaves). In the execution report and the receipt of grounds of detention that bears signature of the petitioner, it is further recorded that the petitioner has been explained the contents of aforesaid documents in Urdu and Kashmiri languages. The affidavit of the executing official in support of the aforesaid assertion is also available in the detention record. Thus, the contention of the petitioner that he has not been furnished whole of the material forming basis of the grounds of detention and that he has not been provided translated version thereof is without any merit.
7) It has been next contended by learned counsel for the petitioner that there were no compelling reasons for the detaining authority t
