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2005 DIGILAW 115 (JK)

Ab. Majid Makroo v. State Of J. &K.

2005-04-26

R.C.GANDHI

body2005
1. Detenu Abdul Majid Makroo son of Mohammad Ramzan Makroo resident of Padgampora Tehsil Tral District Pulwama seeks to quash detention order No. Div. Commr/RA/PITNOB/3 of 2003 dated: 26.8.2003 passed by Divisional Commissioner, Kashmir respondent No.2, directing preventive detention of the detenu for a period of 6 months and subsequently enhanced to 24 months by the Government in exercise of the powers under section 9(f) of the prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter called the Act�). 2. The detention order has been challenged on the ground that the detenu has not been produced before the Advisory Board and statutory right of hearing has been denied to the detenu. Detenu has also not been supplied the material on the basis of which satisfaction has been drawn for directing preventive detention. 3. Respondent No.3 has filed the counter affidavit stating therein that the detenu was carrying 14 bags of Poppy Straw in the Truck bearing registration No.6747 JK02 and during investigation it was found that he is indulging in smuggling of Narcotics and is active in the whole area. The activities of the detenu were prejudicial to the maintenance of law and order. The activities of the detenu have become threat for the society in general which necessitated preventive detention of the detenu. The material relied upon has been communicated to the detenu in the form of grounds of detention. Respondent No.2, detaining authority i.e. Divisional Commissioner Kashmir, despite granting opportunity has not bothered to file the reply. 4. Heard learned counsel for the parties and perused the record. 5. The detention order has been passed by the Divisional Commissioner, Srinagar. He has not filed the counter affidavit controverting the averments of the petition. The averments of the petition that grounds of detention have not been served and the material relied upon also not supplied to the detenu, has not been controverted by the detaining authority. 5. The detention order has been passed by the Divisional Commissioner, Srinagar. He has not filed the counter affidavit controverting the averments of the petition. The averments of the petition that grounds of detention have not been served and the material relied upon also not supplied to the detenu, has not been controverted by the detaining authority. The detaining authority has derived satisfaction for directing preventive detention on the basis of the record received for Home Department, J&K Government, Srinagar vide No. Home-PBB-M/20/03 dated: 4.8.2003 which is evident from first Para of the detention order which reads as: Whereas I Parvez Dewan, Divisional Commissioner, Kashmir am satisfied on the basis of record received from Home Department, J&K Government, Srinagar vide No. Home (PBV) M/20/03 dated: 4.8.2003 with a view to prevent Shri Abdul Majid Makroo alias Maja son of Mohammad Ramzan Kahroo resident of Padgampora Tehsil Tral District Pulwama from engaging in Trafficking of Narcotic and Psychotropic Substances.� The grounds of detention have been served upon the detenu as pleaded by the respondent No.3. The grounds of detention do not find any mention with regard to the material received by the detaining authority vide letter dated: 4.8.2003. The satisfaction has been arrived at by the detaining authority on the basis of the particular material received from the Home Department. It has not been communicated or furnished to the detenu which has the effect of depriving the detenu to make effective representation to the Government against his detention order. It amounts to violation of the safeguard provided to the detenu under Article 22 of Constitution of India. 6. The detaining authority can direct preventive detention if the activities of the detenu are found prejudicial to the security of the State and it can be done only in the mode and manner as provided by law. After the passing of the detention order it is obligatory in law upon the detaining authority to communicate the grounds of detention and the relevant material on the basis of which the detaining has drawn the satisfaction for directing preventive detention. The detaining authority has drawn the satisfaction on the basis of the record received from the Home Department and this record has not been furnished to the detenu. The detaining authority has drawn the satisfaction on the basis of the record received from the Home Department and this record has not been furnished to the detenu. Non-supply of this material has not only deprived the detenu of opportunity to make effective representation against the detention order but also infringed the safeguard available to the detenu, provided by Art.22 of the Constitution. Till the relevant material which constitutes the grounds of detention and the basis for drawing subjective satisfaction by the detaining authority is make available to the detenu, it cannot be said that the detenu has been communicated the relevant material. The respondents have not made out that the relevant material as noticed in the detention order on the basis of which satisfaction has been arrived at by the detaining authority has been communicated to the detenu. Under such circumstances the detention order cannot be maintained and is quashed. For the foregoing reasons, the Habeas Corpus petition is allowed and the impugned detention order No. Div. Commr/ RA/PITNOB/3 of 2003 dated: 26.8.2003 is quashed. The respondents are directed to release the detenu from the preventive detention if not involved in any other case.