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2010 DIGILAW 283 (JK)

Sonaullah Mir v. State Of J&K

2010-05-14

MOHAMMAD YAQOOB MIR

body2010
1. Noticing the activities of the detenu prejudicial to the security of the State, the detaining authority has passed the order of detention impugned, so as to deter the detenue from continuing with such activities. Aggrieved thereof instant petition has been filed on the behalf of detenu by his son. 2. The grounds of detention as formulated would reveal that the detenu alongwith associates was found pasting/displaying objectionable material prejudicial to the social fabric and likely to disturb peace and tranquility, criminal case under FIR No. 282/2009 has been registered against him in Police Station, Pulwama. On 19.11.2009 same activities were repeated, so again a case was registered as FIR No. 320/2009 in Police Station Pulwama. On 20.11.2009, the detenu is alleged to have again resorted to same activities, in the process of stone pelting number of CRPF/Police personnel were injured besides damage to the Government property and case was registered against him as FIR No. 321/2009 for commission of offence punishable under sections 148, 149, 153-A, 121-A, 336, 332 RPC 13 ULA Act, so was arrested. While in custody detention was found imperative, therefore, order of detention impugned bearing No. 09/DMP/PSA/09 dated 18.12.2009 confirmed by the Government on 14.02.2010, though wrongly mentioned in the counter affidavit to have been approved on 31.03.2009 and executed on 28.03.2009 which shows lack of application of mind. 3. Firstly, it is contended that the order of detention has been passed on the basis of material, such as dossier and other documents furnished to the Detaining Authority by Superintendent of Police, Pulwama but copy of the said dossier and other documents have not been provided to the detenu. In opposition of this contention, it is pleaded by the respondents that whatever material was required to be furnished to the detenu stand furnished to him in the form of grounds of detention which in turn would suggest that there is an admission that it is only the paper styled as grounds of detention which has been signed by the Respondent no.2 (Detaining Authority) and provided to the detenu, means that the material forming base for the grounds of detention has not been furnished to the detenu, when it is so, the detenue has been deprived of a valuable right. 4. 4. The question whether the grounds of detention in detail referring to all activities alleged against the detenue, if furnished to him would be enough for recording satisfaction for passing the order of detention. Similar question has been dealt with in LPA (HC) NO. 180/2008 decided on 03.09.2009, wherein after placing reliance on the judgment rendered in Union of India v. Ranu Bhandari, report in 2008 Cr. L.J 4567, it has held: "The stated grounds of detention recording satisfaction bereft of the materials upon which such satisfaction have been recorded and which have been indicated in no uncertain terms in the stated grounds of detention, are no grounds of detention required to be furnished in terms of the provisions of Article 22 of the Constitution". 5. Keeping in view the afore-stated circumstances, the order of detention and consequent detention of detenue is totally bereft of legal sanctity and is violative of the right to liberty. 6. Furnishing of the material forming base for the grounds of detention is imperative for valid continuance of detention. The detenu is required to be supplied all the documents, statements and other material relied upon in the grounds of detention, otherwise safeguards provided in Clauses (5) and (6) of Article 22 will get infringed because the object of communicating such material to the detenu is to enable him to make an effective and meaningful representation against the detention. 7. It shall be quite apt to quote Para 28 and 29 of the Judgment titled Tahira Haris etc. v. Government of Karnataka and others reported in AIR 2009 SC 2184 : "28. Our Constitution provides adequate safeguards under clauses (5) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay". "29. On proper construction of clause (5) of Article 22 read with section 3 (3) of COFEPOSA Act. It is imperative far valid continuance of detention that the detenue must be supplied all documents, statements and other material relied upon in the grounds of detention. "29. On proper construction of clause (5) of Article 22 read with section 3 (3) of COFEPOSA Act. It is imperative far valid continuance of detention that the detenue must be supplied all documents, statements and other material relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenue and the detenue was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution." 8. Applying the ratio of the judgment to the contention raised in the context of position of the instant case, the order of detention has been passed in violation of the guaranteed rights so has to be held bad in the eye of law. 9. The other contention raised not now required to be dealt with as the aforementioned grounds are sufficient for quashing the order of detention. 10. The petition succeeds. Order of detention bearing No. 09/DMP/PSA/09 dated 18.12.2009 is quashed. Resultantly detenue namely Sonaullah Mir S/o Late Gh. Mohammad Mir S/o Nowpora Payeen, District Pulwama is directed to be released forthwith provided he is not required in connection with any other case. 11. Detention record as produced be returned to the appearing counsel for the respondents. Petition accordingly disposed of.