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2002 DIGILAW 168 (JK)

Mohd. Akbar Sheikh v. State

2002-05-21

SYED BASHIR-UD-DIN

body2002
1. Detention order No. DMS/PSA/10 Dated: 18-05-2001 of District Magistrate, Srinagar (respondent No. 2) and the consequent detention of the subject Mohd Akbar Sheikh U/S 8 of J&K PS. Act, 1978 is under challenge on various grounds. However, the counsel confines his submissions and arguments only to non-communication of the order and grounds with material to detenue and inordinate delay in execution of order of detention. These pleas with facts are given in paras 2, 7 and 10 of the petition. Respondents through respondent No. 2 detaining authority has filed counter. 2. Mr. R. Fida, GA relying on the counter and record has countered both the grounds of challenge to submit that the order of detention is valid and in-order. Para 10 of the petition reads as under- "That the detention grounds state that the detenue has been arrested in FIR No. 14/2001 U/s7/25 IA. Act of Police Station Shergarhi, Srinagar. It was incumbent upon the detaining authority to furnish the copy of the said FIR alongwith the statements of the prosecution witnesses recorded under Section 161Cr. P.C. Non supply of copy of FIR and other material referred to in the detention grounds has not only prevented the detenue from making an effective and purposeful representation to the Government but also renders the detention of the detenue illegal, void and unconstitutional." 3. In reply though this para is not specifically replied but at para 3 of the reply it is stated:- "It is denied that the detenue has not been served the grounds/order of detention. The material which formed the basis of passing detention order was furnished to detenue. FIR was not basis of passing order, mention of FIR in the grounds was for reference purpose." The order of detention begins as "Whereas I, Bipul Pathak. IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar...." 4. Obviously the basic facts given in the grounds and subjective satisfaction of the detaining authority District Magistrate, Srinagar is based and derived from the report given by SSP, Srinagar to the detaining authority. On the detention file it is found that the dossier/feed back report of SSP. Srinagar is available. Admittedly neither this report nor other material referred in the grounds like FIR and recovery of arms and ammunition have been supplied to detenue. On the detention file it is found that the dossier/feed back report of SSP. Srinagar is available. Admittedly neither this report nor other material referred in the grounds like FIR and recovery of arms and ammunition have been supplied to detenue. The record also shows that the detenue has been furnished the order and the grounds alone but not the material the basis of the basic facts and information subject of the detention order. In such circumstances compliance with the mandatory provisions of Article 22 (5) is not complied with, in absence of material/documents/report referred in the grounds, the detenue cannot be said to be communicated detention order with grounds this being so the compliance with second limb of affording detenue meaningful and effective representation against the Govt. is equally denied to him. 5. In Sophia Gulam Mohd Bhan 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 flow from the right given to the detenue 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...." 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 detenue can-not 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, in with-held from or denied to the detenue, the detenue cannot be said to be communicated the grounds with material, if so, detenue is denied opportunity to make representation." 6. It is seen in this case that while the subject was in punitive detention in a regular criminal case preventive detention order was passed on 18-05-2001. It is seen in this case that while the subject was in punitive detention in a regular criminal case preventive detention order was passed on 18-05-2001. However, this detention order was executed and detenue put under preventive detention/custody on 18-07-2001. There is no explanation whatsoever for this delayed execution. The reasons are not also given what made the State Govt. and detaining authority not to execute the order for about 60 days. The proximate and live link between the grounds and purpose of detention appears in the facts and circumstances of the case, snapped. In K.P.M. Basheer Vs. State of Karnataka, and Anr. (AIR 1992 SC 1353) it isobserved:- "....Under these circumstances, we are of the view that the order of detention cannot be sustained since the "live and proximate link" between the grounds of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him...." 7. In result, the detention is vitiated and consequently detention order is quashed. Respondents/detaining authority/officer having physical corpus of the detenue Mohd Akbar Sheikh S/O Wali Mohd Sheikh R/O Kramboor Kupwara, is directed to release him from custody and set him at liberty forthwith provided the detenue is not required in any other case, offence or matter. Copy of this order be given to petitioner free of cost. Communicate the order to the concerned. Record produced by learned GA. Mr. R. Fida has been returned to him.