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2011 DIGILAW 177 (JK)

Mohammad Ahsan Antoo v. State & Anr.

2011-04-18

MOHAMMAD YAQOOB MIR

body2011
1. Detenue is claimed to be a human rights activist and also claims to be Chairman of International Forum for Justice. The object of the said forum is to highlight human rights violation and it is in this context detenue is claimed to have been agitating as against the human rights violations but in the process is claimed to have been taken into custody in connection with case registered under Section 107,151 Cr. P.C on 21.4.2010. Noticing his imminent release, the Detaining Author­ity derived satisfaction that the detenue at being large would be potential threat to the public order, as such, has been detained pursuant to detention order No. DMS/PSA/09/2010 dated 27.4.2010 and the period of detention has been fixed as 12 months. Dissatisfied there, instant petition for quashment of the same has been filed. 2. The first contention as against the order of detention is that no compelling reasons have been recorded for passing the order of detention when the detenue was already in custody with the case registered under Section 109 and 151 Cr. P. C. 3. The contention is without any legal basis as the detention under Section 151 Cr. P.C can be only for a limited period and it is that situation which has prompted the Detaining Authority to pass the order of detention. Compelling reason, as such, is inferable. 4. Next it is contended that the detenue has not been furnished the material forming base for the grounds of detention, as such, has been deprived making a representation against his detention. 5. This submission, on the perusal of the records, is well founded. Detention record as produced is suggestive of the fact that the detenue has been supplied only the copy of grounds of detention and the letter informing him to make the repre­sentation if he so chooses. It is forthcoming from the records that the copy of the dossier as prepared by the SSP has been copied. The grounds of detention is simply replica of the contents of the dossier but what forms the base for the dossier is not forthcoming from the records which in turn would mean that the material forming base for the dossier has not at all been supplied to the detenue nor the same has been considered by the Detaining Authority. 6. The grounds of detention is simply replica of the contents of the dossier but what forms the base for the dossier is not forthcoming from the records which in turn would mean that the material forming base for the dossier has not at all been supplied to the detenue nor the same has been considered by the Detaining Authority. 6. The underlying object of formulation of grounds of detention is that the Detaining Authority has to scrutinize the records(material) as shall be produced before him so as fo derive satisfaction about the requirement of keeping a person under preventive detention. It appears that said material at all has not been placed before the Detaining Authority, then how he has derived satisfaction about the activities of the detenue is not discernible from the records which in turn would mean the non-application on the part of Detaining Authority. When there is non-application of mind, the order of detention cannot be said to be valid. 7. The contention of the learned counsel for the respondents that the grounds of detention are in detail, referring to all activities of the detenue, is misplaced as same cannot be termed to be substitute for non-furnishing of the material forming base for such grounds of detention. Same position has been dealt with in LPA(HC) No. 180/2008 decided on 3.9.2009 wherein after placing reliance on the judgment rendered in Union of India v. Ranu Bhandari (2008 Cr. LJ. 4567), it has been held "The stated grounds of detention recording satisfaction bereft of the material upon which such satisfaction had bean 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." 8. The contention that the order of detention has not been approved within the prescribed time and has not been send to the Advisory board, is refuted by the records as the order of detention has been approved well within the period pre­scribed and has been send to the Advisory Board for opinion within the prescribed time. 9. The contention that the order of detention has not been approved within the prescribed time and has not been send to the Advisory board, is refuted by the records as the order of detention has been approved well within the period pre­scribed and has been send to the Advisory Board for opinion within the prescribed time. 9. Further contention of the learned counsel for the petitioner that the District Magistrate has not informed the detenue about his right of making representation to him (District Magistrate), is misplaced as the detenue has been informed about his right to make representation even before the Detaining Authority (District Magistrate). The last two lines of the letter dated 27.4.2010 addressed to the detenue read as under: "You may make a representation against the order of detention mentioned above to the undersigned and to the Government, if you so desire." 10. It being so, the principle laid down in the judgment rendered in HCP No. 285/2010 captioned Farooq Ahmad Bhat v. State & anr to this extent does not apply to the instant case. 11. The order of detention impugned bearing No. DMS/PSA/09/2010 dated 27.4.2010 in the backdrop of afore-stated circumstances being unsustainable is quashed. Detenue, namely, Mohammad Ahsan Antoo S/O Gh. Hassan Antoo R/0 Devar Lolab Kupwara, shall be released forthwith provided he is not required in connection with any other case. 12. Detention record be returned to the learned counsel for the respondents. Petition accordingly succeeds as above.