Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 114 (JK)

Manzoor Ahmed Khan v. State Of J. &K.

2003-04-29

SYED BASHIR-UD-DIN

body2003
The subject Manzoor Ahmed Khan has been taken in preventive custody on 31.01.2002 pursuant to detention order No. DMS/PSA/34 dated 7.12.2001 by District Magistrate Srinagar (respondent No. 2) detaining authority in this case. This order and the consequent detention is under challenge in this petition. Though number of grounds have been taken to challenge the detention, however counsel for the petitioner urges the lone ground of failure to supply the record relied on by the detaining to draw the subjective satisfaction for this detention and therefore, the counsel submits that the order has not been communicated to the detenu, thereby the order is rendered bad under law. Counsel for otherside Mr. Tasaduq Khawaja submits that as per para 10 of reply and para 8 of the petition the only material relied is grounds of detention which is supplied to detenu. No other record has been relied, therefore, the detention cannot be said to be vitiated. To appreciate the respective contentions of the Counsel for the parties it would be in place to refer to the pleadings and the detention order itself. Para 8 of the petition reads as under:- "That the detenu 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 grounds to the detenue has prevented him from making an effective representation against his detention. Consequently the detention of the detenu has been rendered void and illegal" Para 10 of the counter reads as under:- "It is submitted that it is only the grounds of detention which have been relied for detention of the detenu under PSA. The FIR has only a passing reference in the grounds. No other record or material has been relied." In the detention order the very first and second line reads as under:- "Whereas I Abdul Hamid, IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar." A combined and conjoint reading of the pleadings as also the detention order shows that for purpose of detention in question, detaining authority has drawn subjective satisfaction from the record which has been made available to him by SSP Srinagar. However, from the record available with the file it appears that the detention record includes report/dossier of the SSP Srinagar. However, from the record available with the file it appears that the detention record includes report/dossier of the SSP Srinagar. Some part of report or record pertains to antinational and sub-versive activities of the detenue pertaining to the year 1996-97 and for a period earlier to this date. It also shows that the record also included the circumstances and facts which lead to the registration of regular case and arrest of detenue in a regular criminal cases and recoveries of arms and ammunition. From the grounds if the recording as to registration of the case and recoveries of arms and ammunition (forming two paragraphs) is excluded/ taken out, then the material placed refers to the period 1996-97 and earlier to 1997. What has been the record the basis of the detention, is not even clear from grounds. The circumstances mentioned in the grounds pertaining to period 1996-97 cannot by any logic stated to be basis for a detention in 2001 after all four years have passed by and the `proximate and live link between the order of detention and purpose sought to be achieved by the detention, must have been focused on in the grounds and obviously as rightly pointed out by the then District Magistrate it is a matter of record. If it be so then the record and the material/documents which have entered the subjective satisfaction of the detaining authority have not been supplied to the detenu and thereby the detenue cannot be stated to have been communicated the order of detention as mandated by Article 22 (5) of the Constitution. In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Ors., AIR 1999 SC 3051, the Apex court observed:- "...The right to be communicated the grounds of detention flows 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 too 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 Naseer Ashmed Sheikh v. Additional Chief Secretary Home and Anor. (1999 SLJ 241) a Division Bench of this court 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. No where is it pleaded muchless shows 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 detenu so as to enable him to make an effective representation against the order." In the above view of the matter, in my opinion the detention order cannot be sustained and is vitiated. The impugned detention order is accordingly quashed. Respondents/authority/officer having physical corpus of detenu Manzoor Ahmed Khan (Age 22 Yrs.) S/o Gh. Hassan Khan R/o Khew Mohalla, Khanyar Srinagar shall release and set him at liberty forthwith, provided the detenu is not required in any other case, offence or matter. Copy of this order be given to petitioner free of cost. Registry to take follow up action, Disposed of.