Ghulam Nabi Chandail Th Qamar Din Vs Ut of J and K Th. Commissioner Secretary to Government Home Department Jammu and Others

The appellant was detained under section 8 of the J&K Public Safety Act, 1978 (for short ‘the Act’) vide order of detention bearing No. 03/PSA of 2024 dated 17.07.2024 issued by respondent No.2 (hereinafter to be referred as ‘the Detaining Authority’) on account of alleged acts of the appellant/detenue prejudicial to the maintenance of the public order.

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The appellant being aggrieved of his detention under the Act assailed the order of detention on conventional grounds through the medium of a writ petition bearing HCP No. 108/2024 but could not succeed in getting the detention order quashed, as the learned writ court vide order dated 25.02.2025 dismissed the petition preferred by the appellant.

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LPA No. 46/2025

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The appellant being aggrieved of the judgment dated 25.02.2025 has assailed the same on the grounds inter alia that the order of detention was assailed before the learned writ court on the ground that the documents relied upon by the Detaining Authority were not provided to the appellant as was evident from the receipt of notice appended with the objections submitted by the respondents before the writ court, but the learned writ court did not properly consider the issue and dismissed the writ petition in a very casual and mechanical manner. The learned writ court has also not taken into consideration that the appellant was released on bail in FIR No. 40/2019 of Police Station, Gool and facing trial before the court of learned 3^rd Additional Sessions Judge, Jammu and further that the appellant could not have been detained in respect of incident which was stale in nature. It was also urged before the learned writ court that son of the appellant had applied with the District Jail Ambphalla for obtaining complete set of documents relied upon by the detaining authority for the purpose of issuance of order of detention, but he was provided with the copy of challan only, pending before the court of learned 3^rd Additional Sessions Judge, Jammu. The respondents in their response to the writ petition have stated that the appellant was one of the accused in FIR No. 40/2019 under Sections 120-B, 121-A, 122 RPC 7/27 Arms Act and 13, 17 and 19 of the Unlawful Activities (Prevention) Act of Police Station, Gool and after

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taking into consideration the relevant reports entered in Daily Diary Register of Police Station, Gool, the appellant was ordered to be detained under Section 8 of the Act. It has been further stated that the Home

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LPA No. 46/2025

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Department vide order dated 22.07.2024 has approved the order of detention of the appellant. The respondents have pleaded that all the constitutional and procedural safeguards were duly followed while issuing and executing the order of detention.

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Learned counsel for the appellant has argued that the learned writ court has not appreciated the specific ground raised by the appellant that he has not been provided with the complete set of documents relied upon by the Detaining Authority for the purpose of issuance of order of detention, and the receipt of notice, order of detention and grounds of detention along with dossier bears testimony to the fact that only nine leaves were provided to the appellant on 18.07.2024 and mere non-furnishing of documents relied upon by the Detaining Authority to the appellant is sufficient enough for quashing the order of detention.

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Per contra , Ms. Monika Kohli, learned counsel for the respondents has argued that the appellant was provided with all the relevant documents relied upon by the Detaining Authority for the purpose of detaining the appellant, as such, the contention raised by the appellant is misconceived. She has further argued that all the constitutional as well as statutory safeguards have been complied with by the respondents while issuing and executing the order of detention.

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6.

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Heard and perused the record of detention.

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It is urged before this Court that the relevant record relied upon by the Detaining Authority for issuance of order of detention has not been provided to the appellant. A perusal of the grounds of detention reveals

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LPA No. 46/2025

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that the Senior Superintendent of Police, Ramban-respondent No. 3 submitted a dossier along with Xerox copies of FIR, final report, statements and six extracts of Daily Diary Reports in respect of the activities of the appellant considered prejudicial to the maintenance of public order, to the Detaining Authority. The Detaining Authority after perusal of the same, issued the order of detention dated 17.07.2024. Vide communication dated 17.07.2024, respondent No. 2 sought approval of order of detention dated 17.07.2024 from respondent No. 1 wherein reference has been made to 18 leaves sent to respondent No. 1 along with the said communication. The “receipt of notice, order of detention and grounds of detention along with dossier” reveals that nine (9) leaves in total were provided to the appellant. Even if the said receipt is relied as such for the purpose of demonstrating that the relevant material was provided to the appellant, it establishes that copies of notice (one leaf), order of detention (one leaf) and grounds of detention along with dossier, nine leaves in total were provided to the appellant. The dossier comprises of 4 leaves, whereas the grounds of detention comprise of 5 leaves, meaning thereby that the documents even mentioned in the receipt were not provided to the appellant. A perusal of the grounds of detention reveals that the Detaining Authority has relied upon six Daily Diary Reports i.e. DD No. 12 dated 20.06.2024, DD No. 22 dated 23.06.2024, DD No. 10 dated 25.06.2024, DD No. 17 dated 27.06.2024, DD No. 08 dated 29.06.2024 and DD No. 04 dated 02.07.2024 and even these Daily Diary Reports were not provided to the appellant. In receipt of detention, there is

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LPA No. 46/2025

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no mention that the documents other than the ones mentioned in the receipt but relied upon by the Detaining Authority were provided to the appellant.

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It is a settled law that the documents relied upon by the Detaining Authority for issuing the order of detention, are required to be provided to the detenue in order to enable him to make an effective representation against the order of detention to the Detaining Authority as well as to the Government. The record produced by the respondents itself bears testimony to the fact that the documents relied upon by the Detaining Authority were not provided to the appellant in order to enable him to make an effective representation, against the order of detention issued against him, to the Detaining Authority and to the Government.

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It has been specifically pleaded by the appellant that after his son applied with the jail authorities, he was provided with a copy of challan and Daily Diary Reports but still he was not provided with the grounds of detention and the copy of order of detention. As already observed above, the leaves mentioned in the receipt do not correspond to the actual number of leaves of documents stated to have been provided to the appellant, which gives

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rise to doubt in respect of the assertion of the respondents that the relevant record was provided to the appellant, and this doubt must tilt the balance in favour of appellant. In Pramod Singla v. Union of India

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(MANU/SCOR/47947/2023), the Hon’ble Supreme Court of India has held that every procedural rigidity, must be followed in entirety by the

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LPA No. 46/2025

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Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue.

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Thus, non-furnishing of all the documents relied upon by the Detaining Authority while issuing the order of detention, has resulted in denial to the appellant of his right guaranteed under Article 22(5) of the Constitution as well as Section 13 of the Act. It is only after the detenue is provided with all the material (except the one disclosure of which shall not be in public interest) relied upon by the Detaining Authority, he can make an effective representation to the Detaining Authority as well as to the Government. Failure on the part of respondent No. 2 to supply material relied upon by him while passing the order of detention, renders the same illegal.

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Reliance is placed upon the decision of Apex Court in “Thahira Haris v. Govt. of Karnataka”, reported in (2009) 11 SCC 438 and the relevant para is reproduced under:

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“30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.”

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Similarly, in Jaseela Shaji vs. Union of India, 2024 INSC 683 , the

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Hon’ble Supreme Court of India has held as under:

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A perusal of the aforesaid judgment would reveal that for emphasizing the importance of personal liberty and individual freedom, this Court has reproduced Joy Adamson’s memorable classic

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Born Free. This Court observed that though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the Courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law. It has been held that when a detention order is passed all the material relied upon by the detaining authority in making such an order must be supplied to the detenu to enable him to make an effective representation. This Court held that this is required in order to comply with the mandate of Article 22 (5) of the Constitution, irrespective of whether the detenu had knowledge of such material or not.

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It is thus a settled position that though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation under Article 22 (5) of the Constitution has to be supplied to the detenu.

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Further from the comparative perusal of the grounds of detention prepared

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by the detaining authority and dossier sent by respondent No. 3 to detaining authority, it is found that except for cosmetic changes at the top and the bottom of the grounds of detention, all the contents of the grounds of detention are the mirror image of the contents of the dossier. It clearly reflects the non-application of mind on the part of respondent No. 2. Reliance is placed upon the decision of Apex Court in the case of Jai Singh v State of J&K reported in (1985) 1 SCC 561 and the relevant part is reproduced as under:

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"8. -------First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...."

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9. Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated

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and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

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Same principle has been reiterated by the Hon’ble Supreme Court of India

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in Rajesh Vashdev Adnani vs. State of Maharashtra and others , (2005)

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8 SCC 390 , that where the detention order is verbatim reproduction of the police dossier, the order suffers from non-application of mind on the part of the Detaining Authority.

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We have examined the judgment passed by the learned writ court and we find that the learned writ court in paragraph 7 of the judgment has observed that the Executing Officer, ASI Nasib PID Police Station, Gool has executed the warrant and the detenue has been provided with the copy of notice, detention order and grounds of detention, dossier and “other relevant material”. The learned writ court returned this finding while placing reliance upon the execution report, whereas in the execution report it is not mentioned that other relevant material was provided to the

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appellant.

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Further, the learned writ court has also observed that while going through the order of detention and dossier, it is clear that the grounds of detention are not the verbatim copy of dossier of the sponsoring agency. This finding is also contrary to the record as we have compared the contents of the dossier with the grounds of detention and find that except for cosmetic changes, the contents of the grounds of detention are the verbatim reproduction of the dossier.

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LPA No. 46/2025

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In view of the above, we are of the considered view that the judgment passed by the learned writ court is not sustainable in the eyes of law and accordingly, the same is set aside and the petition filed by the petitioner for quashing the order of detention bearing No. 03/PSA of 2024 dated 17.07.2024 issued by respondent No. 2 is hereby allowed and the order of detention is quashed. The petitioner is directed to be released from preventive custody provided he is not required in connection with any other case.

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The record, as produced, be returned to the learned counsel for the respondents.

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(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE
SRINAGAR:
04.07.2025
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No

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Rakesh Kumar 2025.07.14 11:51 I attest to the accuracy and integrity of this document

Ghulam Nabi Chandail Th Qamar Din v. Ut of J and K Th. Commissioner Secretary to Government Home Department Jammu and Others

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Ghulam Nabi Chandail Th Qamar Din v. Ut of J and K Th. Commissioner Secretary to Government Home Department Jammu and Others

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