1. The Order No.35/DMP/PSA/2019 dated 18.07.2019, passed by District Magistrate, Pulwama whereby detenu namely Shri Mohd Iqbal Hafiz, son
of Gh. Nabi Hafiz, resident of Prichoo Pulwama, Tehsil and District Pulwama has been placed under preventive detention to prevent him from acting
in any manner prejudicial to the security of the State and directed his lodgement in Kot Bhalwal, Jail, Jammu, has been challenged, in this writ petition,
through his brother.
2. The order of detention though challenged on various grounds, yet learned counsel for the petitioner has vehemently urged that the material relied
upon by the detaining authority while passing impugned detention order has not been provided to detenu, thus, he was prevented from making an
effective and meaningful representation. Another submission of learned counsel for petitioner is that grounds of detention are replica of police dossier.
3. Mr. Mir Suhail, learned AAG appearing on behalf of the respondents, has filed counter affidavit as well as produced the detention record. He
submits that there is no illegality in the order of detention, as it was necessary to place the detenu under preventive detention so as to prevent him from
acting in any manner prejudicial to the security of the State. All the material relied upon by the detaining authority was communicated to the detenu in
the language he understands. Thus, all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining
authority and the detaining authority after arriving at subjective satisfaction has passed the order of detention.
4. I have heard learned counsel for the parties and considered the matter.
5. The main ground taken by the detenu, in this writ petition, is that he was not in a position to make an effective and meaningful representation either
to the detaining authority or to the Government against his detention because he was not provided the material by the detaining authority, thus, there is
violation of provisions of Article 22 (5) of the Constitution of India and in absence of such material he was prevented from making an effective
representation.
6. To evaluate the submissions made by learned counsel for parties vis-Ã -vis furnishing of material to detenu that has been relied upon by detaining
authority while issuing impugned detention order, it would be appropriate to go through the detention record, produced by learned counsel for
respondents. Detention record contain, amongst others, Execution Report, detention order, communication addressed to detenu, which reveals that
four leaves have been furnished to detenu. Execution report, on its perusal, reveals that only four leaves have been given to the detenu and the
material relied upon by detaining authority while passing impugned detention order has not been provided to detenu, thereby infringing his constitutional
and statutory rights.
7. Bare reading of impugned detention order divulges that Superintendent of Police, Pulwama, vide his letter no. Pros/PSA/DPO/19/604 dated
27.06.2019, produced dossier, material record, 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 attribute various incidents and instances to detenu and mention
that detenu has been instigating/provoking the masses against the government and his persistent involvement in antisocial and antinational activities is
posing severe threat to peace and security of the State. Detention record also mentions lodgment of two FIRs against the detenu. The material, relied
upon by detaining authority, 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 apprehensions concerning the activities of detenu are baseless and misplaced. If detenu is not supplied the material, on which detention order is
based, he will not be in a position to make an effective representation against his detention order. Failure on the part of detaining authority to supply
the material relied at the time of making the detention order to detenu, renders 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 AIR 1999
SC 3051; and Syed Aasiya Indrabi v. State of J&K & others, 2009 (I) S.L.J 219.
8. In the present case, it is submission of learned counsel for respondents that there are very serious allegations against detenu as he has always been
in the lead role in nefarious activities, which are hazardous to the sovereignty and integrity of the country and has been creating law and order
problem. And in this connection, various criminal cases are already going on against detenu under various provisions of Penal Laws and if he is found
guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws
but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a
substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed.
After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v.
State of Tamil Nadu AIR 2011 SCW 2262, while emphasising need to adhere to procedural safeguards, observed:
“It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or
reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as
“jurisdiction of suspicionâ€, The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22
specifically excludes the applicability of Clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate
within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and
meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.â€
9. In a case of preventive detention, no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or
reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to
prevent apprehended objectionable activities. But at the same time, when a person's greatest of human freedoms, i.e. personal liberty, is deprived, the
laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical,
has to be mandatorily made. Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors, (1975) 3 SCC 198; Union of India v.
Paul Manickam & anr, (2003) 8 SCC 342; Rajinder Arora v. Union of India (2006) 4 SCC 796; Powanammal v. State of Tamil Nadu and anr., AIR
1999 SC 618; G. M. Shah v. State of J&K, (1980) 1 SCC 132; Talib Hussain v. State of J&K & others, 2009 (II) SLJ 849; Nissar Ahmad Bhat v.
State & ors, 2014 (III) SLJ 1047; Shahmali v. State & others, 2010 (1) SLJ 56; Dilawar Magray v. State of J&K & ors, 2010 (II) SLJ 696; and Sajad
Ahmad Khan v. State & others, 2010 (II) SLJ 743.
10. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission
under such laws. [See: - V. Shantha v. State of Telangana and others, AIR 2017 SC 2625] Recourse to normal legal procedure would be time
consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious
seeds, affecting maintenance of public order or security of the State, and that there was no other option except to invoke the provisions of the
preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract
punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not
be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But
such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating
crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody
without trial. My views are fortified by the judgements rendered in the cases of Rekha’s and V. Shantha (supra) as also in Sama Aruna v. State
of Telengana AIR 2017 SC 2662.
11. Based on the above discussion, the petition is disposed of and Detention Order no.35/DMP/PSA/2019 dated 18.07.2019, issued by District
Magistrate, Pulwama is quashed. As a corollary, respondents 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
