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2010 DIGILAW 194 (JK)

Firdous Ahmad Shah v. State Of J. &K.

2010-04-10

MUZAFFAR HUSSAIN ATTAR

body2010
1. Detenu, Firdous Ahmad Shah has been ordered to be detained by the District Magistrate, Srinagar-respondent No.2 by exercise of powers under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereafter for short `the Act of 1978), vide Order No.DMS/PSA/72/2009 dated 08.02.2010 and has been ordered to be lodged in District Jail, Kathua. The detention order is inter alia challenged on the grounds that the material on which the detaining authority has based its satisfaction for ordering detention of the detenu, has not been provided to him; the grounds are vague; the translated script of the order of detention and grounds of detention has not been made available to the detenu etc. 2. Notice was issued to the respondents and when they failed to file counter affidavit the Court vide order dated 23rd of March, 2010 observed that respondents have forfeited their right to file the counter affidavit and were accordingly directed to keep the detention record available on next date of hearing. 3. Detention record has been made available. 4. Heard learned counsel for the parties and considered the matter. 5. Learned counsel for the detenu has argued in tune with the pleadings as have been enumerated in the petition. Learned counsel for the respondents justified the order of detention for the reason that the same was necessitated in the fact situation of this case. 6. The respondent No.2 in the detention order has stated that the Sr. Superintendent of Police, Srinagar produced the material record such as dossier and other connecting documents in respect of the detenu. It is on consideration and by relying on said documents that respondent No.2 passed the detention order. 7. Perusal of the record reveals that the material on which the detaining authority has relied upon while passing the detention order has not been served on the detenu. 8. In a civilized society like ours which is governed by rule of law, every person has guaranteed right to live a fetter free life which right is enshrined in Article 21 of the Constitution. The said provision of the Constitution, however, provides that a person can be deprived of his life and personal liberty in accordance with the procedure established by law. Article 22 of the Constitution authorizes the Government to legislate laws on preventive detention. The said provision of the Constitution, however, provides that a person can be deprived of his life and personal liberty in accordance with the procedure established by law. Article 22 of the Constitution authorizes the Government to legislate laws on preventive detention. As the Act of 1978 has the potential of depriving an individual of his personal liberty so the provisions of the Act of 1978 as also Article 22 of the Constitution are to be construed strictly. 9. Article 22(5) of the Constitution and the provisions of the Act of 1978 confer an indefeasible right on the detenu to file representation against the order of detention. The detenu can make an effective representation only when he is made available all material which has become basis for passing of detention order. Admittedly, in this case the material which has become basis for passing of detention order has not been provided to the detenu, which has resulted in violation of constitutional guarantee as contained in Article 22(5) of the Constitution. This ground is sufficient for annulling the detention order. 10. Accordingly, this petition is allowed. Detention Order No. DMS/PSA/72/2009 dated 08.02.2010 is quashed. It is provided that detenue Firdous Ahmad Shah S/o Late Ali Mohammad Shah R/o Abi Guzar, Srinagar, Kashmir be released from preventive custody in case not required in any other case. Disposed of.