Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 174 (JK)

Mehraj-ud-Din Shigam v. State

2004-06-01

SYED BASHIR-UD-DIN

body2004
Subject Mehraj-ud-din Shigan is detained u/S. 8 of J. and K.P.S. Act, 1978 with a view to prevent him from acting in any manner prejudicial to the Security of State by District Magistrate, Srinagar (respondent No. 2) under his order No. DMS/PSA/32 dated 3-6-2002. This order is under challenge in this petition. Though number of grounds have been taken, yet Ld. Counsel for the petitioner is making submission only on following two grounds :- First that the detenu has not been supplied material relied on in the grounds and detention by the detaining authority thereby he is prejudiced to make representation against the order to the Government. Second, that the detention order suffers from non-application of mind, inasmuch as, there is no proximate and subsisting link between the grounds and the purpose sought to be achieved by the detention. The detention order is vague and the facts and circumstances given in grounds are separated by considerable time period from the actual date of order of detention. Ld. Counsel for the respondent Mr. M. A. Wani, Dy. AG submits that the detenu has been supplied grounds and detention order and even receipts have been obtained from the detenu by way of acknowledgement thereof and the detenu has been informed of his right to make representation. Counsel further submits that the detention order is based on ground as given in the memo of grounds qua detenus involvement in militancy, recovery of arms and ammunition, registration of the case at P/s Batmaloo, Srinagar and the apprehension that he may get bail. These stated grounds, are sufficient to sustain the detention. The detention file is made available by Mr. M. A. Wani, Dy. AG. The grounds of detention (Annexure P-1) comprised of four paragraphs. Paragraph first states that the detenu is an active and staunch member of Aljahad militant organisation with aim and object of seceding the territory of J. and K. from Union of India. The next and main paragraph says that the detenu born in 1975 went across the line of actual control in 1990 and returned back four months later in 1991, after receiving training in handling of arms and ammunition. However the detenu went to Russia for undergoing MBBS course in 1994. From 1994, for a period of 8 years he was in Russia and obtained MBBS degree in March, 2002. However the detenu went to Russia for undergoing MBBS course in 1994. From 1994, for a period of 8 years he was in Russia and obtained MBBS degree in March, 2002. The third paragraph says that the detenu returned back to the State in March, 2002. He was arrested and from his possession one Chinese pistol, One Magazine and three live rounds were recovered and FIR 36/02 u/S. 7/25 I.A.A. was registered against him at P/s Batamallo, Srinagar. In last paragraph it is stated that the detenu may get bail and in that eventuality his remaining at large will be threat to the Security of the State, therefore, he is detained under P.S. Act. From bare reading of the grounds as above, it is more than manifest that immediately before detenus arrest and detention, in March/June, 2002 detenu spent full 8 years in undergoing MBBS course in Russia and there is no allegation that during this period the detenu engaged or was involved in any anti-national or militancy related activity. In absence of such allegations, the events which may have happened at least 8 years earlier to his detention, cannot serve ground for the present detention. This is so, because there is no proximate and subsisting link between the incriminating facts referred in the grounds and the purpose of detention. Grounds are quite vague and run in omnibus terms. This is typical case of non-application of mind by the detaining authority. So far as recovery of the pistol, magazine and rounds is concerned that is taken care of by registration of FIR at P/s Batamalloo, Srinagar and launching of regular case under Indians Arms Act against the detenu. This solitary incident of recovery of arms and ammunition and that too when the detenu returned after 8 years from Russia, cannot and is not necessarily related to militant activity in absence of necessary details. Having thus viewed matter the detention cannot be sustained on this ground alone. The allegation that the material and record is not to detenu and is not denied by the respondents. The impugned detention order itself states that the detention order is passed by detaining authority on the basis of record received from SSP Srinagar. Admittedly the record which may include annexures/material is not supplied to the detenu. The allegation that the material and record is not to detenu and is not denied by the respondents. The impugned detention order itself states that the detention order is passed by detaining authority on the basis of record received from SSP Srinagar. Admittedly the record which may include annexures/material is not supplied to the detenu. In absence of supply of record it cannot be said that the basic facts and information is given to the detenu as mandated by Article 22(5) of the Constitution and statutorily laid by S. 13 of J. and K.P.S. Act. In Sophia Ghulam Mohd. Bhan v. State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064), the Apex Court in the context of "communication of grounds" held :- "........ 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 the 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 Ahmad Sheikh v. Addl. Chief Secretary Home, Division Bench of this Court, 1999 Srinagar LJ 241 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 detenu so as to enable him to make an effective representation against the order." In Gh. Mohd. Mir v. State of J. and K. (HCP No. 93/99) decided on 30-12-1999, (2000 Cri LJ 3233) it is 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 withheld from or denied to the detenu, the detenu cannot be said to be communicated the grounds with material. If so detenu is denied opportunity to make representation." Viewed thus the detention order is vitiated on this count. It is seen from record that the detention period is also expiring on 10-6-04, just after few days. In result for the aforesaid view of the matter the detention order is vitiated and consequently the detention order No. DMS/PSA/32 dated 3-6-2002 is quashed. Detenu Mehraj-ud-din Shigan S/o Noor Mohd. Shigan R/o. S.D. Colony Batmaloo, Srinagar Aged - Shall be released and set free forthwith from custody if not required in any other case, offence or matter. Copy of this order be given to detenu free of Cost. Registrar Judicial to take follow up action. Petition allowed.