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2002 DIGILAW 98 (JK)

Ab. Qayoom Khan v. State

2002-04-09

SYED BASHIR-UD-DIN

body2002
1. Detenue was arrested on 06-02-2001 inFIRNo. 11/2001 U/s7/25 IAAregistered at P/S Beerwah Budgam and was later taken in preventive detention under order No. 175 of 2001 dated: 29-03-2001of District Magistrate. Budgam (respondent No. 2). This order and the preventive detention is under challenge in this petition. Though number of grounds have been pleaded, the petitioners counsel presses and confines his arguments only to the following two grounds:- i/ That the detenue was admitted to bail by the competent court and while out on bail he was taken in preventive detention on 04-06-2001 pursuant to the impugned order dated: 29-03-2001. While passing the impugned order this aspect of the case has not been kept in view in the grounds. The grounds are quite vague and run in ominibus terms. There is non-application of mind. Besides the order of detention has been executed after 6th days. There is no explanation or reason given as to why the concerned took long 68 days to execute the order which again shows that there is hardly any proximate link between the grounds and purpose of detention. ii/ Secondly the counsel urges that though the impugned order is passed on material/documents/record produced before the detaining authority but such material/ documents/record including the dossier (referred) is not supplied to detenue which has prejudiced him in making representation to Govt. against the impugned order. 2. Mr. R.Q. Gadda. GA submit that merely because no mention is made of the detenue having obtained bail in the regular case registered against him at P/S Beerwah, same cannot vitiate the detention order. The order has not been passed mechanically or in routine as alleged. The detenue has not filed representation despite opportunity. The order is not bad despite the admitted position that the detention order has been executed only on 04-06-2001 after 68 days after its approval on 09-04-2001. The counsel further submits that the grounds have been furnished to the detenue and FIR is mentioned in the grounds only for reference purposes. Para 4 of the petition reads as under:- "...The competent court after calling the report from the concerned Police Station admitted the detenue to bail in case FIR No. 11/2001 U/s 7/25 I. A. Act. The said bail order was served upon the concerned jail authorities and the detenue was released accordingly. Copy of the bail order is enclosed herewith this petition as Annexure-A." 3. The said bail order was served upon the concerned jail authorities and the detenue was released accordingly. Copy of the bail order is enclosed herewith this petition as Annexure-A." 3. This factual position is not denied or refuted in the counter and the counsel (GA) concedes this position. Now contextiially when grounds are examined (Annexure-B) one finds that the 1st Paragraph introductory in nature speaks of detenue being a militant of Hizbul Mujahideen outfit. Second para speaks of his being motivated by one Mustafa Khan to weaponry training against the Govt.. of India. Para 3rd speaks of recovery of ammunition and one Hand Grenade from detenue on 06-02-2001 in respect of which FIR No. 11/2001 7/25 I. A. Act is registered at P/S Beerwah. 4. In the counter under the head reply to grounds in para 3 on the last page of the counter, it is stated that the FIR is mentioned only for reference purpose and is not relied on for preventive detention. Obviously when this 3rd para is so treated, then there is no material before the detaining authority to come to conclusion that the detenues activities are prejudicial to the security of the State. This apart neither grounds nor the order shows that the detaining authority has been aware of admittance of detenue to bail in the regular case which fact too has not been considered while arriving at the decision. Conjointly it is strange enough that it took State Govt. long 68 days to execute the impugned order and take the subject in preventive detention only on 04-06-2001. No reason or explanation whatsoever is given or available on record. In the context of delayed execution of detention order/warrant, in Latief Ahamd Wani Vs. State of J&K & Anr. (HCP No. 358/97), I observed: - There is no explanation whatsoever, as to why the order of detention was not implemented and petitioner shown in preventive detention soon after the order of detention. The inordinate delay has not been explained. It is only to indicate that there is considerable doubt on the genuineness of the requisite subjective satisfaction of detaining authority from the stand point of Proximate and live link between the grounds of detention and purpose of detention..." In K.P.M. Basheer Vs. State of Karnataka, and Anr. (AIR 1992 SC 1353) it is observed:- "... It is only to indicate that there is considerable doubt on the genuineness of the requisite subjective satisfaction of detaining authority from the stand point of Proximate and live link between the grounds of detention and purpose of detention..." In K.P.M. Basheer Vs. State of Karnataka, and Anr. (AIR 1992 SC 1353) it is observed:- "... 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 under and unreasonable delay in securing the appellant/detenue and detaining him..." 5. On combined evaluation of the above fact situation and circumstances it is obvious that the submissions of petitioners counsel have the legal weightage and force to vitiate the order. Para 12 of the petition reads as under:-"The detenue has neither been served with the order of detention nor the material referred to in the grounds of detention. Non-supply of the material referred to in the grounds of detention alongwith the detention order to the detenue which prevented him to make an effective representation against his detention. On this count also the detention of the detenue renders illegal and is liable to be quashed." There is no specific reply to this para but ,in para3 under the head "reply to grounds, the detaining authority in counter pleads as under:- The material which formed the basis for passing the detention order was made available to the detenue. The mention of FIR was for reference purpose. No prejudice has been caused to the detenue on account of non-furnishing of copy of FIR or any other material for making an effective representation to the Govt. as provided under law." The first para of the impugned detention order dated: 29-03-2001 (Annexure-C) reads as under: - "Whereas, Superintendent of Police, Budgam vide his No. Pros/Dos/2001/05-08 dated: 12-03-2001 has produced material record such as dossier and other connecting documents in respect of Shri Abdul Qayoom Khan S/O Assadullah Khan R/0 Kawoosa Khalisa Tehsil Beerwah District Budgam who has been reportedly arrested in case FIR 11/2001. Whereas. I Rohit Kansal 1AS, District Magistrate Budgam have gone through the detention of dossier produced before me carefully in respect of the said person." 6. Whereas. I Rohit Kansal 1AS, District Magistrate Budgam have gone through the detention of dossier produced before me carefully in respect of the said person." 6. It is obvious that the order as also the grounds are based on the material record such as Dossier and other connected documents produced before the detaining authority. All this material and documents have not been furnished to detenue, as can be seen even from the detention file produced by the Ld. Govt. Advocate. 7. In Mangalbhai Motiram Patel Vs. State of Maharashtra and Ors. (AIR 1981 SC 510) it is observed:- "... 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." In Smt. Icchu Devi Choraria Vs. Union of India and Ors. (AIR 1980 SC 1983) it is observed: "... What is meant is that the grounds of detention in their entirety must be furnished to the detenue. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenue, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenue a bare refusal 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 detenue within the prescribed time subject of course to Cl. (6) of Art, 22 in order to constituted compliance with clause (5) of Article 22 and Section 3 Sub-section (3) of the COFEPOSA Act..." In Naseer Ahmad Sheikh Vs. Addl. Chief Secretary Home and Anr. (1999 SLJ 241) a Division Bench of this court, to which I was a party observed:- ".. The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Addl. Chief Secretary Home and Anr. (1999 SLJ 241) a Division Bench of this court, to which I was a party observed:- ".. The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Nowhere is it pleaded, muchless shown, that the copy/ copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order." 8. It is obvious that the basic facts and material having a bearing and influence on the subjective satisfaction and conclusion of the detaining authority have got to be communicated to the detenue. This is the basic requirement of first safeguard laid in Article 22 (5) of the Constitution. The right of making representation comes into play if the above legal obligation is performed by the concerned authorities. In absence of the supply of documents/materials detenue would have to be deemed to be deprived of the opportunity of making an effective representation. Obvious having regard to the facts and circumstances of this case the detention here is vitiated even on this court. In result the detention order No. DMB/ PS A/175 of 2001 dated: 29-03-2001 is vitiated and therefore quashed. Respondent/detaining authority/officer having physical corpus of the detemie namely Abdul Qayoom Khan S/O Assadullah Khan R/O Kawoosa Khalisa, Tehsil Beerwah. District Budgam is directed to release him and set him at liberty forthwith provided detenue is not required in any case, offence or matter. Communicate this order to concerned authority. Give copy of this order to petitioner free of cost.