HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

…

HCP no.138/2019

Reserved on: 18.11.2019

Pronounced on: 06.12.2019

Fayaz Ahmad Paul

……. Petitioner(s)

Through: Mr Wajid Haseeb, Advocate

Versus

State of J&K and others

.…Respondent(s)

Through: Mr Javed Iqbal, Sr. AAG

CORAM:

HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE

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

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HCP no.138/2019

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 makin