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2002 DIGILAW 99 (JK)

Muzaffar Ahmad Danposh v. State Of J. &K.

2002-04-09

SYED BASHIR-UD-DIN

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1. Subject Muzaffer Ahmad Danposh is detained under section 8 of the J&K Public Safety Act 1978 by District Magistrate Srinagar with a view to prevent him from acting in any manner prejudicial to the security of the state vide its order No. DMS/PSA/1 dated 06-04-2001. The other grounds that the detenue has not been served with the order of detention or the material referred in the grounds of detension. Non supply of the material referred in the grounds of detention has prejudice him as much as he could not make an effective representation against the detention order to Govt. Besides the safeguards guaranteed under Article 22(5) have not been observed as submitted by the counsel, as there has been inordinate delay in executing the warrant and 54 days have been taken to implement the detention order. 2. The Govt. Counsel contests the above submissions of the petitioners counsel to solicit that the detention is in order and within confines of law. 3. The detaining authority has filed counter affidavit. In terms of counter it is not specifically denied that the material referred in the grounds has not been supplied to detenue. Besides, it is admitted that the order of detention has been passed on 06-04-2001, followed by execution of this order on 30-05-2001. 4. Impunged order of detention reads that the detaining authority the then District Magistrate Srinagar was satisfied on the basis of records received from the SSP.....� In para 12, it is specifically pleaded that the material referred in the grounds is not supplied to detenue which has prevented him from making effective representation against the detention. In reply to this para 12 of the petition, it is not specifically denied, but under para 4, it is averred. It is submitted that the material on which the detaining authority derives subjective satisfaction is relevant....� Without controverting that the material and record referred in order of detention was at any point of time supplied to the detenue. In such circumstance, it cannot be said that the petitioner has been communicated the grounds of detention, within the meaning of Art. 22(5) of the constitution. After all the detenue can make representation and assail the order of detention only when all the material /record on which the grounds of detention is based is communicated to him. Obviously, detenue is denied opportunity of making an affective representation. After all the detenue can make representation and assail the order of detention only when all the material /record on which the grounds of detention is based is communicated to him. Obviously, detenue is denied opportunity of making an affective representation. See : i) Sophia Gulam Mohd. Bham Vs. State of Maharashtra & Ors. (AIR 1999 SC 3051) ii) Ghulam Mohd. Mir Vs State Of J&K & anrs. (HCP No. 93/99) decided on 30-12-1999. iii) Naser Ahmad Sheikh Vs. Addl. Chief Secretary Home & anrs. (1999 SLJ 241 D.B.) 5. The other ground that the impunged order was executed after 54 days is not refuted. In fact, the Govt. counsel has also conceded this petition. As is evident from record that the impunged order has been implemented/executed after 54 days though the detenue was all along available for such detention with the State Govt. and its authority. No explanation what so ever is on record for such delayed execution of the order. in absence of any explanation for in ordinate delay, considerable doubt is casted on the genuineness of the requisit from the satisfaction of detaining authority from the stand point of proximate and live link between grounds of detention and purpose of detention. 6. In Ghulam Rasool Shah Vs. State of J&K & anrs. (LPA No. 17/99)decided on 10-08-1999, a Division Bench of this court observed:- ..... In the present case the detenue was available with the executing agency, being lodged in judicial custody in connection with a criminal case. No explanation has been tendered for the delayed execution of the order of detention. Therefore, there is a reasonable ground to think that the delay in execution of the detention warrant was occasioned by the respondents deliberately to gain time and to ensure that the detenue is kept in custody for a longer period of time. This object, as in the case at hand, can be achieved by respondents by a simple way. The detenue is first kept in custody in connection with criminal case for as long a period as can be, while the execution of the warrant of detention is kept pending . As and when the executing agency apprehends that the accused detenue is likely to be bailed out, on a considerable long period has elapsed since the date of the issue of the detention order, they execute the detetion warrants at their whim and will. As and when the executing agency apprehends that the accused detenue is likely to be bailed out, on a considerable long period has elapsed since the date of the issue of the detention order, they execute the detetion warrants at their whim and will. Thus their object of prolonging the custody/detention a citizen is achieved. This is simply malafide on the part of the concerned authorities.� 7. In result, for the aforesaid reasons the detention as also the impunged order of detention cannot be held to be legal. It is vitiated. The impunged detention order is quashed. Respondents/detaining authority/officer having corpus of the detenue Muzaffer Ahmad Danposh S/o Abdul Aziz Danposh, R/o Gunzkhud Jamalata Srinagar is directed to release him forthwith, provided this detenue is not required in any other case, matter or offence. 8. Copy of this order be given to petitioner free of cost. Communicate order to the concerned. Record has been returned to Mr. R.Q. Gadda, Government Advocate.