Jammu and Kashmir High Court upholds the Writ Petition of Habeas Corpus filed against a detention order

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On 5 May 2020, Hon’ble Mr Justice Dhiraj Singh Thakur, via video-conferencing, heard the case of Mohammad Ashraf Sheikh Vs State of J&K & Ors. The Court allowed the Writ Petition and quashed the detention order on technical grounds.

Facts Of The Case

On 29 August 2019, the District Magistrate, Pulwama, ordered the detention of the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order. This order was exercised under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978.

The basis of the order was that the petitioner had developed contacts with various mischievous and anti-social elements and participated in various processions that resorted to violence for enforcing bandhs and strike calls given by the separatists. It was alleged that the petitioner was involved in a crime in 2019 Parliamentary Elections, wherein a violent mob damaged an SRTC bus injuring the polling staff on it. Concerning this, FIR was registered against him that led to his arrest. However, he was released on bail.

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On 6 August 2019, allegations were made that the petitioner was involved in heavy stone pelting on the police forces. The FIR was filed following which he was arrested but was released on bail yet again.

The petitioner was detained under the provisions of Public Safety Act as he was found to be against the decision of Union Government scrapping the Article 370 of the Constitution of India leading to the bifurcation of the State of Jammu and Kashmir, hence, he started provoking and instigating common masses, especially the youth, to resort to violence. The present Habeas Corpus petition was filed to quash this detention order.

Arguments Of The Petitioner

Mr. Wajid Haseeb, the learned counsel for the petitioner argued that

  • The petitioner had not been furnished the requisite material which formed the basis of the order of detention
  • The petitioner had not been provided with the copies of the FIRs, which found a mention in the grounds of detention.
  • The 05 leaves handed over to the petitioner did not contain the copies of FIRs which had a mention of grounds of detention.
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Therefore, the petitioner cannot be detained.

Arguments Of The Respondents

MR Mir Suhail, AAG, the learned counsel for the respondent argued that

  • The respondents served the petitioner with both copies of grounds of detention and order of detention. This can be seen from paragraph 2 of the reply affidavit.
  • Reports of the Executing Officer serving the petitioner with 5 leaves in all is produced which included the contents of the PSA warrant (01 leaf), notice (01 leaf), and grounds of detention (03 leaves) which were read over and explained to the detainee in Kashmiri and Urdu language.

Court’s Analysis

The Court stated that the response filed by the respondents was vague in furnishing the requisite documents to the petitioner.

The record produced by the respondents does not justify and support the stand taken by them that all the materials were provided to the petitioner.

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Report of the Executing Officer clearly shows that the copies of FIRs were not furnished to the petitioner.

The Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors, AIR 1999 SC 3051 held that in pursuance of the preventive detention order, the detainee must be provided with the grounds on which the order was made and he must be given the earliest opportunity to represent against the order. Article 22(5) of the Constitution deals with the right to be communicated the grounds of detention and all the materials on which the grounds are based should also be provided. The detainee can make a representation and the detention order can only be assailed if the grounds on which the order is based are communicated, and the material on which those grounds are based are disclosed and copies provided to the detainee in his language.

The Supreme Court in the case of Thahira Haris vs. Government of Karnataka & Ors, AIR 2009 Supreme Court 2184, held that if the grounds of detention and the documents based on that is not provided to the detainee it leads to the violation of the right of the detainee enshrined in Article 22(5) of the Constitution.

Court’s Decision

The Court said that the respondents have prevented the petitioner from making an effective representation before the concerned authorities by not providing him with the requisite documents, particularly the FIRs mentioned in the grounds of detention. Therefore, the order of detention cannot be sustained in law and is accordingly quashed. The petitioner is to be released.

However, if the respondents deem it necessary, they can pass a fresh order, since this order of detention has been quashed only on technical grounds.


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