DB quashes PSA as violated the constitutional right of the appellant

15/05/2021

Srinagar, May 14: In a LPA filed by Riyaz Ahmad Bhat against the judgment of writ Court whereby writ Court dismissed the petition challenging the detention under PSA.
A Division Bench of Jammu & Kashmir High Court Comprising Justice Dhiraj Singh Thakur and Justice Sanjay Dhar after gone through the judgment observed that it can be seen that the grounds of detention accompanying the order of the District Magistrate Pulwama have made a mention of the involvement of the appellant in two separate cases bearing FIR No. 22/20218 registered under Section 307 of the RPC, 7/27 of the Arms Act and 3/4 of the Explosive Substances Act & FIR No. 25/2018 registered under Section 307 of the RPC and 7/27 of the Arms Act respectively, both registered with Police Station Pulwama.
The specific case urged by counsel for the appellant was that even when the appellant was shown to have been involved in the aforementioned two cases, yet no documents in the shape of the FIRs and other connected material was ever supplied to the appellant, which would have enabled the appellant to submit a comprehensive and meaningful representation to the concerned authorities.
It was urged that the learned Single Judge had committed an error in law in holding that the constitutional obligation of the official respondents had been discharged by supplying all the relevant material in terms of Article 22(5) of the Constitution of India. On a perusal of the judgment and order impugned, more particularly paragraph 11.1, it can be seen that the Single Judge had come to a conclusion that there was no error of law or procedure committed by the official respondents, which would invalidate the order of detention and this satisfaction was recorded on the basis of the report of the Advisory Board dated 25.11.2019, wherein it had been recorded that the requirements of the Act had been complied with.
DB observed that with a view to verify as to whether the requisite material including copies of the FIRs, of which a mention was made in the grounds of detention were ever supplied to the appellant, records were summoned. On a perusal of the record, it can be seen that there is a document, which reads as "receipt of grounds /relevant papers of detention" which is signed by the appellant- Riyaz Ahmad Bhat as also the Assistant Superintendent, Central Jail Srinagar. According to this receipt, relevant papers of detention consisting of four leaves, was served upon the detenue-appellant. Not only this, the contents of the detention order and the ground of detention are stated to have been read over and explained to the detenue in Kashmiri, Urdu and English languages and further that he was informed that he could make a representation to the Government against his order of detention, if he so desired. There is also an execution report separately signed by one Ghulam Qadir, Sub-Inspector, Police Station Pulwama, which reflects that a total of four leaves were handed over to the detenue, which included PSA warrant - one leaf, Notice - one leaf and grounds of detention - two leaves (in total four leaves), which were also read over and explained to the detenue in Urdu & Kashmiri languages. The execution report further reads that the detenue was informed that he could make a representation against his order of detention, if he so desired. It thus becomes clear that apart from the above, copies of two FIRs bearing Nos. 22/2018 & 25/2018 were never supplied to the appellant. If that be so, then we cannot persuade ourselves to uphold the finding returned by the learned Single Judge that there was no error of law or procedure committed by the detaining authorities. The argument of the learned counsel for the appellant that failure to furnish the requisite documents had thus prevented the appellant from making an effective representation, which had, therefore, violated the constitutional right of the appellant under Article 22(5) of the Constitution of India, is an argument, which is thus legally tenable.
With these observations, Divi-sion Bench set-aside the judgment of writ Court and also quashed the order of detention dated 16.10. 2019. The appellant is directed to be released forthwith, if otherwise not required in any other case.

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