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2010 DIGILAW 308 (JK)

Mohd. Maqbool Itoo v. State

2010-05-24

MOHAMMAD YAQOOB MIR

body2010
1. Impugned order of detention bearing No.30/DMS/PSA/08 dated 22.8.2008 remained to be executed till 9.9.2009 but then apprehending its execution, petitioner filed the instant petition along with Cr.MP. 2. Pursuant to order dated 9.9.2009, noticing the non-execution of the order of detention for about one year, its execution stand stayed subject to deposition of Rs.20,000/ by the petitioner and subject to filing of undertaking not to indulge in any activity which may be prejudicial to the maintenance of public order or prejudicial to the security of the State. The said amount stand deposited as is recorded by the Registry in its report. 3. The validity of the order of detention impugned is questioned on two counts, first that the order suffers from non-application of mind and secondly the material forming base for the detention has not been supplied to the petitioner. 4. When an order of detention is not executed for a period of more than one year from the date of its passing, it automatically becomes irrelevant, more particularly when the petitioner is available. The object of impugned order of detention is to deter petitioner from acting in any manner prejudicial to the security of the State. So deterrence is the object to be achieved but when the petitioner is not noticed have done anything for about one year from the date order of detention has been passed, the object automatically is achieved. That apart, the petitioner admittedly had been arrested in connection with case registered as FIR Mo. 13/2008 for the commission of offence punishable under Section 7/25 Arms Act and Explosive Substances Act. Petitioner in connection with said case stand admitted to bail by the Court of Chief Judicial Magistrate, Shopian on 24th of March, 2008. 5. While formulating the grounds of detention, the position of the petitioner having been admitted to bail has not been noticed anywhere. On this count non-application of mind is quite clear. Secondly in the grounds of detention general allegations have been made, that is to say that the petitioner has deep relations with most of the upper ground workers and active terrorists of HM outfit and is stated to be an associate of a hardcore terrorist, namely, Raul Bhat who has been killed. Secondly in the grounds of detention general allegations have been made, that is to say that the petitioner has deep relations with most of the upper ground workers and active terrorists of HM outfit and is stated to be an associate of a hardcore terrorist, namely, Raul Bhat who has been killed. Furthermore it is mentioned that he provides shelter to a foreign terrorist and also provides logistic support to the terrorists, guides the terrorists and also provide them information about the movement of the security forces. 6. The jugglery of words as used must have some basis, that is to say if the petitioner was working as an upper ground workers, was he ever booked for any such activity, at least under ULA Act. So to simply say that he provides hideouts, extends logistic support, provides information about the movement of security forces is not enough unless it is specifically mentioned when, where and how he was doing the aforesaid activities. Then at least some case would have been registered against him. The Detaining Authority has simply copied the wording as used in the dossier prepared by the concerned SSP which is not supported by any material. Simply to copy whatever is contained in the dossier and then to say these are grounds of detention is a clear case of non-application of mind because while formulating grounds of detention the Detaining Authority has to ensure that there is a solid foundation for the grounds so mentioned. To detain a person under preventive laws carries the risk of depriving a person of his liberty, though permissible but when only solid base is available for the same. 7. The material forming base for the grounds of detention or for the dossier as prepared by the police has not been furnished to the petitioner. Detenue has a vested guaranteed right to represent against the detention and for exercise of such right, he must be communicated as to what is the material based on which he has to be taken into preventive custody. It is no more res integra that non-supply of material relied upon by the Detaining Authority deprives a person of his constitutional right to make an effective representation. It is no more res integra that non-supply of material relied upon by the Detaining Authority deprives a person of his constitutional right to make an effective representation. Furthermore when the grounds of detention are totally vague and uncertain, the petitioner has to be held to have been deprived of his right to make an effective representation against his detention, therefore, an infringement of the right guaranteed under Article 22(5) of the Constitution. 8. Lack of application of mind as noticed above coupled with non-supply of material forming base for grounds of detention and then non-execution of order of detention for over a period of more than one year renders the order impugned as bad in the eye of law. Furthermore nothing has been brought on record to show that the petitioner from 22nd August, 2008 till date for over a period of one year and nine months has indulged in any activity prejudicial to the security of the State, therefore, the only position as emerge is to hold that the order of detention is bad, as such, quashed. 9. The amount of Rs.20,000/ deposited pursuant to the order dated 9.9.2009 shall be paid back to the petitioner. Registrar Judicial to ensure the same. The undertaking filed by the petitioner pursuant to said order shall stand discharged. 10. Petition succeeds and is disposed of accordingly.