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2002 DIGILAW 297 (JK)

Bashir Ahmad Lone v. State

2002-09-16

SYED BASHIR-UD-DIN

body2002
1. The subject Bashir Ahmad lone was put under preventive detention on 03-08-2001 in execution of detention order 23/DNP dated: 02-08-2001 passed by District Magistrate Pulwama. The order and the consequent detention are challenged, as submitted by the counsel, on following two grounds:- First, it is alleged that order of detention and material referred in grounds like FIR, Seizure memos and Dossier have not been supplied to detenue. The detenue is prejudiced to make an effective representation against the detention order and. Second, no compelling circumstances are disclosed to warrant his detention under J&K Public Safety Act when the detenue had been already arrested and was held in punitive detention. Counter has been filed by the Detaining Authority District Magistrate, Pulwama respondent No. 2. The detention file is also made available as part of record. 2. Mr. R.Q. Gadda, GA submits that the detenue has been taken in preventive detention under J&K Public Safety Act only on the basis of grounds of detention and the Memo of grounds of detention has been admittedly supplied to the detenue. The detenue has not complained or made grievance that he has not received the grounds. Reference to FIR, and Seizure of memo is to the extent that the detenue have been booked in FIR No. 199/2K under Section 7/25 I. A. Act registered at Police Station Pulwama, when on his arrest on 06-07-2001, one Pistol, and four Pistol rounds were recovered from his possession. No dossier is referred in the grounds. Even the so called dossier or report is sufficiently and substantially reflected in the grounds so as to not to prejudice the detenue. The counsel further submits that the compelling circumstances have been fully given in the ground, not only that the detaining authority was aware of detenue™s arrest and detention in the regular arms and ammunition recovery case, but also having regard to the "nature of accusations made and other circumstances, the detaining authority had sufficient reason for urgent requirement to detain the detenue under J&K Public Safety Act, in order to prevent him to act in any manner prejudicial to the security of the State. 3. In Mangalbaie Moti Lalaram Patel Vs. State of Maharashtra and Ors. (AIR 1981 SC 510) while focusing on the procedural safeguards and constitutional imperative in the matter of preventive detention, observed:- "...... 3. In Mangalbaie Moti Lalaram Patel Vs. State of Maharashtra and Ors. (AIR 1981 SC 510) while focusing on the procedural safeguards and constitutional imperative in the matter of preventive detention, observed:- "...... This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The Constitutional imperative indicated in Article 22 (5) are two fold: (1) the detaining authority must as soon as may be, that is as soon as practicable, after the detention communicate to the detenue the grounds on which the order or detention has been made, and (2) the detaining authority must afford the 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 detenue therefore, has the right to be furnished with the grounds of detention alongwith the documents relied upon." 4. It is not if any or every document referred in the grounds of detention is to be furnished to the detenue. Whether non supply of material vitiates the detention order depends on facts and circumstances of each case. The said test in such case is that the detenue has to show "failure to supply the documents", has prejudice his right to make the representation. In the grounds of detention it is seen that after introductory portion, petitioner™s links with his joining the militant out fit H.M. is given. Besides he is stated to have been trained in using and handling of arms and lobbing of grenades. He is further stated to have provided shelter to the militants and that intelligence in put have been received about affiliation of the subject with the militant out fit and his work for the out fit at the upper ground level. Petitioner is stated to have been provided job of motivating some teen age boys for hurling the grenades in public places to create panic and terror among the masses. The detenue was arrested on 06-07-2001. Arms and ammunition were recovered from his possession regarding which case FIR was registered at Police Station Pulwama. 5. In the face of above allegations detenue is detained under P.S. Act. Registration of the FIR and recovery of arms and ammunition is given succintly in the ground itself. The detenue was arrested on 06-07-2001. Arms and ammunition were recovered from his possession regarding which case FIR was registered at Police Station Pulwama. 5. In the face of above allegations detenue is detained under P.S. Act. Registration of the FIR and recovery of arms and ammunition is given succintly in the ground itself. Recovery of arms and ammunition and lodging of case is put in condensed form in the grounds. In such circumstances it cannot be said that the detenue has been prejudice by non supply of FIR or recovery memo. The grounds and the order does not speak of any other ground. The dossier-available with the detention file in fact is substantially what the grounds contained. This report of SSP Pulwama is no different from the grounds. It forms the matrix of the ground basis of the impugned order. The contention that by failing to supply FIR, recovery memo and dossier, detenue has been prejudice cannot be countenance. In the facts and circumstances of this case, no right of detenue is infringed or breached thereto. 6. In Karmaruniess Vs. Union of India (AIR 1991 SC 1640) the Apex Court has held as under:- "....It is not sufficient to say that the detenue were not supplied the copies of documents in time on demand but it must be shown that the non-supply has impaired the detenue™s right to make effective and purposeful representation, demand of any or every documents, however, irrelevant it may be for the concerned detenue, merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenue must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however, slight or in significant it may be in the present case, except stating that the documents were not supplied before the meeting of Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioner point out any such prejudice." Therefore, the contention is over ruled. It is not denied that the detenue was being held in the regular case FIR 199/2FC under Section 7/25 I. A. Act registered at P/S Pulwama in connection with recovery of arms and ammunition from his possession when the detention order was passed. As observed in Rameashwas Shaws case (1964) 4 SCR 921, a detention order can be validly passed, even in such a case provided the detaining authority is aware of the fact that the detenue is already in detention and that compelling reasons exist to justify such detention. The Authority on the basis of material before him is to be satisfied that the detenue is likely to be released from custody and having regard to the nature of the antecedent activities of the detenue he is likely to indulge in prejudicial activities and therefore the necessity to detain him to prevent his engagement in such activities. The grounds of detention sufficiency show that detaining authority was well aware of detenue™s punitive detention in Regular A.I.R. and considered the antecedents of his association with and acting and working for the militant organisation H.M. He is even stated to be trained in handling of arms and ammunition. Besides his upper ground activities are alleged to be threat to the security of the State. The recovery of arms and ammunition from his possession reinforces the contention that the antecedent activities of the detenue are such that if released he would indulge in activities prejudicial to the security of the State. In such circumstances the contention that the compelling reasons are not forthcoming on record to warrant detention cannot be also accepted and is rejected. In the result, for the aforesaid view, the writ petition merits dismissal and is accordingly dismissed. Detention file is returned to R.Q. Gadda. GA.