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2005 DIGILAW 228 (JK)

Gulzar Ahmad Kuchay v. State Of J. &K.

2005-08-12

MANSOOR AHMAD MIR

body2005
1. Subject, Gulzar Ahmad Kuchay son of Mohammad Ramzan Kuchay R/O Kadder Tehsil Kulgam District Anantnag through his brother, Mohammad Yousuf Kuchay, seeks to quash the detention order bearing No. Det/PSA/2005/373 dated 22.01.2005 passed by respondent No.2 District Magistrate, Anantnag in exercise of powers in terms of Section 8 of Jammu & Kashmir Public Safety Act, 1978, whereby the detenue stands detained in detention for a period of 24 months and lodged in Central Jail Kotbilwal, Jammu, on various grounds taken in the memo of petition. 2. The respondents have filed reply. Heard. Considered. 3. It is averred in the petition that copies of FIR, seizure memo have not been supplied to the detenue. There is nothing on the file suggesting the fact that such material was supplied to the detenue in order to make an effective representation. Thus on this count, the detention order is bad. 4. The petitioner has also pleaded that the detaining authority was under legal obligation to furnish the copies of the material, grounds of detention and detention order to the detenue. The contents of all the material should have been read over to the detenue in his own language in order to enable him to make an effective representation. The said mandate of law has not been complied with. In Sophia Ghulam Mohammad Bham vs. State of Maharashtra and Ors. (AIR 1999 SC.3051), the Apex Court has observed as under;- "......... 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 to 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 5. Photostat copy of compliance report submitted by the serving officer is on the record. The serving Officer has reported that he has read over the grounds of detention and the contents of impugned order in Urdu and Kashmiri language to the detenue. In which language, whether in Urdu or in Kashmir, the same has been read over to the detenue is best known to the serving officer. The serving Officer has reported that he has read over the grounds of detention and the contents of impugned order in Urdu and Kashmiri language to the detenue. In which language, whether in Urdu or in Kashmir, the same has been read over to the detenue is best known to the serving officer. The report nowhere discloses that other material was supplied to the detenue or contents of the same were read over to the detenue. The matter would have been clinched if there would have been affidavit of the serving officer on the file explaining that how, when and in which language the contents of warrant, grounds of detention and other material were read over to the detenue. This view is fortified by the Apex Court judgment reported in 2005 (1) JKJ 7(SC), State Legal Aid Committee, J&K v. State of J&K and ors. Thus the mandatory provision of law has not been complied with. On this count also, the detention order needs to be quashed. 6. In terms of the impugned detention order the detaining authority has derived satisfaction in terms of the material submitted by Super intendent of Police Kulgam vide communication No.Pros/CPO/03/1539 dated 28.07.2003. This shows that whatever material was collected upto 28th July, 2003 has been made basis for detaining the detenue. It is worthwhile to mention that detention order has been passed on 22.01.2005. There is nothing on the file suggesting the fact that whether the detenue was involved in any activity prejudicial to the security of the State from 28.07.2003 till 22.01.2005. This suggests non- application of mind. 7. It is also worthwhile to mention herein that material pertains to FIR No.62/2003. The detenue stands admitted to bail in the said FIR on 06.08.2003 and then the detenue was released on bail. The Photostat copy of the docket issued by the court of Id. Sessions Judge, Anantnag is on the file. The petitioner has pleaded in para-2 of the petition that detenue was admitted to bail by learned Sessions Judge, Anantnag. This fact has not been denied by the respondents in their reply. It is profitable to reproduce the reply submitted to para-2 of the petition herein; - "2. Sessions Judge, Anantnag is on the file. The petitioner has pleaded in para-2 of the petition that detenue was admitted to bail by learned Sessions Judge, Anantnag. This fact has not been denied by the respondents in their reply. It is profitable to reproduce the reply submitted to para-2 of the petition herein; - "2. In reply to para No. 2, 3, 4, it is submitted that the allegations leveled in these paras against the security forces and others are not based on any record, however, it is submitted that the detenue was arrested by the security forces on 25.5.2003 and a case FIR No.62/2003 u/s 7/25 A. Act stands registered against the detenue. The detenue was later on detained under Public Safety Act in terms of an order-bearing No. Det/PSA/2005/373 dated 22.1.2005 issued by competent authority. " 8. It was the duty of the detaining authority to -ascertain that whether the detenue was involved in any activity prejudicial to the security of the State after being released on bail. In the given circumstances, it can be safely held that detaining authority has not applied its mind. In view of the above discussion, it is hereby held that detention order needs to be quashed. Accordingly, the petition is allowed. The detention order is hereby quashed with the command to the State to release the detenue forthwith provided, he is not required in any other case. Record be returned back to Mr. M. A. Beigh, Dy. AG.