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2004 DIGILAW 1 (JK)

Ashiquallah Wani v. State Of J. &K.

2004-01-27

SYED BASHIR-UD-DIN

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Subject Ashiquallah Wani is detained by district Magistrate Srinagar (Vide his order No. dMS/PSA/35 date 6.6.2002) under section 8 of J&K Public Safety Act with a view to prevent him from acting in any manner prejudicial to the security of the State (Annexure P2). This order and the consequent detention is challenged in this petition. 2. Respondents have filed counter through district Magistrate Srinagar, the Detaining Authority. 3. Heard. Notwithstanding the fact that several grounds have been taken Ld. Counsel for the petitioner has pressed sole ground to question the detention as contained in Sub para 3 (d) of the petition supplemented by his submissions that the detenu has not been supplied material and documents referred in the grounds of detention, thereby he has been prejudiced to make an effective representation against the detention to the Govt. resulting in violation of constitutional and statutory right of the detenu as embodied by Art, 22(5) and Section 13 of J&K P. S. Act. 4. Ld. Govt. Advocate Mr. T. K. Khawaja submits that the order of detention as also the memo of grounds, (annexure P1) have been supplied to detenu and petitioner had the opportunity to make representation which he has not availed and the detention order is in order. 5. Para 3 (d) of the petition reads as under:- "That, the detenu has not been furnished copy of FIR, dossier, statement of prosecution witnesses recorded by the police under Section 161 Cr. P.C. and the material referred in grounds of detention. Non-supply of the material to detenu, in his own language, prevented the detenu to make a representation against his detention, on this ground also the detention of the detenu is illegal and renders to be quashed." 6. Reply to para 3(d) above, in counter reads as under :- "That the grounds are correct relevant and hence the order of detention does not suffer from any illegality." The impugned detention order No. dMS/PSA/35 date 6.6.2002 so far as it is relevant reads as under:- "whereas I, Abdul Hamid, IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar that with a view to prevent Shri Ashiquallah Wani S/o Gh. Mohd. Wani R/o Padashahi Bagh, Srinagar.........." 7. Mohd. Wani R/o Padashahi Bagh, Srinagar.........." 7. Keeping the above plea and reply in juxtaposition to impugned order a combined reading in the light of the submissions made by the learned counsel for the parties shows that the decision of the District Magistrate of having arrived at the conclusion that it is necessary to prevent the subject from indulging in activities prejudiced to the Security of the State and consequent detention under section 8 of J&K P. S. Act, is but based on material/documents/records supplied to Detaining Authority interalia by SSP Srinagar. On application of mind decision is spoken to have been arrived at on the basis of record received from SSP Srinagar. This is what is stated by the impugned order. Reply in terms says that the grounds are correct and relevant but does not refute or otherwise displace the allegation of non-supply of the material and documents to the detenu. There is nothing in the reply/counter to show that the allegation of non-supply of material/record/documents basis of satisfaction of the detaining authority to order in question is addressed to muchless refuted. 8. In the facts and circumstances of this case communication of the grounds as ordered under Article 22(5) and Section 13 of the P.S. Act is not there. In other words there is non-compliance with the above constitutional mandate and statutory provisions of the J&K P. S. Act. 9. In Sophia Ghulam Mohd. Bham v. 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 against the order of detention. Bham v. 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 against the order of detention. A representation can be made and the order of detention can be assailed only when all grounds on which the order is based are communicated to the detenu 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 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 detenu so as to enable him to make an effective representation against the order." In Ghulam Mohd. Mir v. State of J&K through Addl. Chief secy. (Home) Civil Sectt ; & Ors. in HCP No. 93/99 the court observed:- In the circumstances, the detenu cannot 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, is with-held from or denied to the detenu, the detenu cannot be said to be communicated the grounds with material. If so detenue is denied opportunity to make representation." 10. In the above view of the matter, detention is not legally sustainable. As a foretiorari impugned detention order is quashed. Detenu Aishaqullah wani S/o Gh. Mohd. Wani R/o Padshahi Bagh, aged 55 years Srinagar shall be released forthwith provided he is not required in any other case, offence or matter.