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2010 DIGILAW 585 (JK)

Manzoor Ahmad Kiloo v. State Of J&K

2010-11-25

J.P.Singh

body2010
1. Manzoor Ahmad Kiloo has approached this Court through Shoukat Ahmad Khan, his relation, for setting him to liberty quashing District Magistrate, Anantnag's order No.Det/PSA/DMA/10/20 dated 10.06.2010, whereby he was ordered to be detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from acting in any manner prejudicial to the public order in South Kashmir. 2. The detention has been questioned on two grounds viz (1) the detenu was deprived of his right to make effective Representation to the Government against the detention because he was not supplied the material that had weighed with the Detaining Authority to direct his detention and (2) the Detention Order was the result of District Magistrate's non-application of mind, in that, there was no material available with the Detaining Authority to record satisfaction that the detenu would be released from police custody in FIR No.231/2010 registered under Section 67 of the Information Technology Act, Section 5 of Prevention of Immoral Traffic (Prevention), Act and Sections 292, 506 & 385 of the Ranbir Penal Code and when so released indulge in activities prejudicial to the peace and tranquility in South Kashmir. 3. Contesting the pleas raised by the detenu, it is stated by the District Magistrate that the detenu had been detained to prevent him from acting in any manner prejudicial to the public order and situation in South Kashmir particularly in District Anantnag in view of his immoral activities for which he was arrested in FIR No.231/2010 registered at Police Station, Anantnag. The material, which had weighed with the Detaining Authority, is stated to have been supplied to the petitioner. According to the learned District Magistrate, release of the detenu on bail would have destroyed the social fabric of the society and the Detention Order was thus warranted in the circumstances. 4. Heard learned counsel for the parties and considered their submissions in the light of the records produced by the learned State counsel. 5. The records of the Detaining Authority indicate that all that had been supplied to the detenue was the Grounds of Detention and not the material, which had weighed with the Detaining Authority at the time of contemplating Manzoor Ahmad's Detention. 6. 5. The records of the Detaining Authority indicate that all that had been supplied to the detenue was the Grounds of Detention and not the material, which had weighed with the Detaining Authority at the time of contemplating Manzoor Ahmad's Detention. 6. The copies of the Seizure Memos prepared during investigation of FIR No.231/2010 indicating detenue's involvement in the offences mentioned in the FIR and the Police Dossier, on the basis whereof, the grounds of Detention appear to have been drawn by the District Magistrate, were not supplied to the detenu, as is apparent from the receipt executed by him in this behalf indicating that he was supplied only one leaf on 11.06.2010, which contained only the grounds of Detention and nothing beyond that. 7. The detenu's plea that he was disabled to make effective representation against his detention as the material relied upon by the Detaining Authority was not supplied to him is, therefore, found substantiated, in that, no effective Representation may be contemplated by a detenu unless he was supplied all the material, that had entered the mind of the Detaining Authority while contemplating his detention. 8. Non-supply of the detailed information regarding the material seized during the investigation of FIR No. 231/2010, enabling the detenu to know as to what exactly was attributed to him in view of the seizure of objectionable material from the laboratory, deprives him of his right to make effective Representation to the Government, violating the provisions of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act. 9. That apart, the detenu being already in custody, his Preventive Detention could be ordered only if there was material on records, on the basis whereof, it could be said that the detenu was likely to be released from custody on bail or otherwise and when so released would indulge in such activities, which would disturb the peace and tranquility in South Kashmir. 10. There is absolutely no material on records to indicate that the detenu was likely to be released from Police Custody and when so released would again indulge in such activities disturbing peace and tranquility. 11. In the absence of any material with the Detaining Authority to indicate that the detenu was likely to be released from custody and would again indulge in such activities, Manzoor Ahmad's detention cannot be sustained. 12. 11. In the absence of any material with the Detaining Authority to indicate that the detenu was likely to be released from custody and would again indulge in such activities, Manzoor Ahmad's detention cannot be sustained. 12. The Detention, thus, being violative of the provisions of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, is liable to be quashed. 13. This Petition, therefore, succeeds, and is, accordingly, allowed quashing District Magistrate, Anantnag's order No. Det/PSA/ DMA/10/20 dated 10.06.2010. 14. A direction shall accordingly issue to the respondents to release the petitioner forthwith from Preventive custody. 15. Detention records be returned to the learned State counsel.