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2001 DIGILAW 111 (JK)

Feroz Ahmed Mehand v. State

2001-05-22

SYED BASHIR-UD-DIN

body2001
JUDGEMENT Per Syed Bashir-ud-din J 1. The detention order No. 37/DMP/ 2000 dated: 20.07.2000 passed by District Magistrate, Pulwama (Respondent No. 2) as approved by the State Government (Respondent No. 1) detaining Feroz Ahmad Mehand u/s 8 of J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State is under challenge in this petition. 2. Though number of grounds are taken to assail detention but the only grounds of challenge pressed by petitioners counsel as referred in para 3 of the petition are that the detenue has not been served the order of detention and grounds therefor. The grounds are not explained to him in the language which he understood. He is not supplied material/documents referred in grounds. Detenue is not informed of his right to make representation to govt. against detention order. He is denied opportunity to make the representation. 3. Respondents have filed counter through the detaining authority (respondent No. 2) and also produced detention record which was retained on the file. Respondents contended that the detention order at the time of execution on 25.07.2000 was read over and explained to detenue in the language which he understood and grounds therefor have been also served and explained to detenue. The only material on which detention is based are grounds. 4. Heard. 5. On examination of record and in the light of contention advanced by the parties, it is seen that the detenue has been served the order of detention but not the grounds or material on which the grounds are based. Though detention record produced reveals that the detenue was supplied copy of the order of detention at the time of execution of the order through a selection grade constable of P/s Pulwama, the acknowledgment and endorsement speaks of execution of the order qua handing over of the detenu to Central Jail, Srinagar for preventive custody and handing over of the copy of the order to detenue. Intoken of the receipt thereof thumb impression of the detenue has been taken. It shows neither copy of the grounds was served nor any other material was supplied to detenue. It is also seen that the order of detention speaks that it has been passed "on the bases of grounds of detention placed before him" (meaning thereby District Magistrate, Pulwama). Intoken of the receipt thereof thumb impression of the detenue has been taken. It shows neither copy of the grounds was served nor any other material was supplied to detenue. It is also seen that the order of detention speaks that it has been passed "on the bases of grounds of detention placed before him" (meaning thereby District Magistrate, Pulwama). In the grounds besides the introductory remarks and background facts, statement of association of detenue with Hizbul-Mujahideen outfit, motivation of youths to join this militant outfit, detenues arrest in a regular criminal case, recovery of arms and ammunition at his instance, association of some other alleged militant namely Khurshid Ahmed Bhat are based on some information, report etc. fed to the detaining authority. In fact this aspect gets cleared when one notices on record of this file, dossier/report of Superintendent of police District, Pulwama. The material admittedly has not been supplied to the detenu. There is nothing on record to show that the grounds were at all supplied to him and in case so supplied if same was explained to him. Evasive reply and bald assertion of supply of grounds and explaining same to detenu, would, in the facts and circumstances of the case, hardly displace the onus on respondents as requirement of law. The petitioner/detenus allegations that the grounds and the material has not been supplied to him and that the grounds have not been explained to the detenu is not disproved by respondents. It is interesting to note that for supply of grounds it is stated in the counter that an endorsement bearing thumb impression of detenu has been obtained and placed on record. But detention record/file shows that the endorsement with thumb impression of detenu on record is on the endorsement that detention order is executed and detenu is handed over to the Jail authorities, besides that the contents of warrant are explained to the detenue. It no where speaks off explanation of grounds to detenu. The contention that the material was not supplied to detenu and also that the grounds were not explained to detenu and illiterate person is substantiated on record. The onus to negate these allegations is not discharged by the respondents. It no where speaks off explanation of grounds to detenu. The contention that the material was not supplied to detenu and also that the grounds were not explained to detenu and illiterate person is substantiated on record. The onus to negate these allegations is not discharged by the respondents. Viewed thus neither the grounds on which order of detention is based is communicated to the detenue nor the detenue is afforded an opportunity of making a representation against the order or detention. 6. In Magalbhai Mortirm Patel vs. State of Maharashtra & Ors. case (AIR 1981 SC 510), the Apex court observed that: "... This court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperatives indicated in Art. 22(5) are twofold; (1) the detaining authority must as soon as may be, that is, as soon as practicable, after the detention communicated to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford detenue the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what it means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention, the grounds would be incomplete without such documents. The detenu, therefore, has the right to be furnished with the grounds of detention along with the documents relied upon." 7. In Smt. Icchu Devi Choraria vs. U.O.I. & Ors (AIR 1980 SC 1983), the Apex court in the context of communication of grounds of detention held that: "... What is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Cl. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Cl. (6) of Art. 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act...." 8. In Sophia Gulam Mohd. Bham vs. State of Maharashtra & Ors. (AIR 1999 SC 3051), the Apex Court observed that: "...The right to be communicated the grounds of detention flow from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language..." 9. In Gh. Mohd. Mir vs. State of J&K Anr. (HC Pet. No. 93/99) decided on 30.12.1999) this court observed that: "...In the circumstances, the detenu cannot be said to have been provided an opportunity and the means to make meaningful and effective representation against the detention as guaranteed apart from provisions of Public Safety Act, by Article 22 of the Constitution. So long the material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or denied to the detenu, the detenu cannot be said to be communicated the grounds with material, if so, detenu is denied opportunity to make representation." 10. For the aforesaid reasons the impugned order of detention is found vitiated and consequently the detention is illegal. The impugned order is quashed. Respondents/ competent authority having physical corpus of the detenu Feroz Ahmed Mehand S/o Abdul Gaffar Mehand R/o Trichal Tehsil District Pulwama is/are directed to release him from custody an set him at liberty forthwith, provided he is not required in any other case or substantive offence. Communicate this order to concerned and give copy of this order to petitioner free of cost. 11. The record is returned to Mr. A.M. Watali, GA in open Court.