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2011 DIGILAW 29 (JK)

Gh. Mohd. Payer v. State & Anr.

2011-02-08

MOHAMMAD YAQOOB MIR

body2011
1. Impugned is the order of detention No.07-DMK/PSA of 2010 dated 25.09.2010. The said order has been confirmed and the period of detention has been fixed as one year. 2. Contention of the learned counsel for the petitioner is that the non applica­tion of mind on the part of Detaining Authority is apparent from the wording of the order impugned itself. 3. Secondly it is contended that the detenue has been deprived of making an effective representation which is a right guaranteed under Article 22(5) of the Constitution and infringement of such right renders the order of detention as illegal. Supporting his contention, learned counsel for the petitioner placed reliance on the judgment captioned Sophia Ghulam Mohammad v. State of Maharashtra (AIR 1990 SC 3051), wherein it has been held: "The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language." 4. Learned counsel for the petitioner has further placed reliance on the judg­ment rendered by the Division Bench of this Court in LPA (HC) No.180/2008 decided on 03.09.2009, wherein while placing reliance on the judgment rendered by the Hon'ble Apex Court in Union of India v. Ranu Bhandari (2008 Cr. L. J. 4567), it has been held: "The stated grounds of detention recording satisfactory bereft of the mate­rials upon which such satisfaction has been recorded and which have been indicated in no uncertain terms in the grounds of detention, are no grounds of detention required to be furnished in terms of the provisions of Article 22 of the Constitution". 5. In opposition learned counsel for the respondents tried to controvert the submissions as made but records failed him to support his submission. 6. Contents of the order impugned are suggestive of the fact that the Detaining Authority (respondent No.2) has in huff recorded the order. 5. In opposition learned counsel for the respondents tried to controvert the submissions as made but records failed him to support his submission. 6. Contents of the order impugned are suggestive of the fact that the Detaining Authority (respondent No.2) has in huff recorded the order. In the order respondent No.2 has recorded that he has gone through the contents of the dossier which shows that he has not gone through the material forming base for such dossier. Further­more, it is recorded that the detenue be detained and lodged in Kotbhalwal Jail for a period of one year. 7. District Magistrate has no power to fix the period of detention. Section 8 of the Jammu & Kashmir Public Safety Act (hereinafter referred to as "the Act") empowers Divisional Commissioner and the District Magistrate to pass the order of detention. The said power is controlled by Section 8(4) of the Act which provides that when an order is made, the said officers have to forthwith report the fact to the Government together with the grounds on which the order has been made. It further provides that no such order shall remain in force for more than 12 days unless, in the meantime, it is approved by the Government. When the Government approves the order within four weeks from the date of detention, the Government shall place before the Advisory Board the grounds on which the order has been made, repre­sentation, if any, made by the person effected and the report of the officer made under sub-section 4 of Section 8 as required in terms of Section 15 of the Act. On receipt of the report in favour of detention, the Government has to confirm the detention as required in terms of Section 17(1) of the Act. It is only thereafter the government has to fix the period of detention as envisaged by Section 18 of the Act. 8. The Detaining Officer (respondent No.2) appears to have acted in haste while passing the order of detention impugned. By fixing the period of one year prejudice as against the rights of the detenue is inferable as there is every likelihood of the authority getting influenced by the proposal of fixing the term of one year as the period of detention. The Detaining Officer (respondent No.2) appears to have acted in haste while passing the order of detention impugned. By fixing the period of one year prejudice as against the rights of the detenue is inferable as there is every likelihood of the authority getting influenced by the proposal of fixing the term of one year as the period of detention. The fixing of period of detention by respondent No.2 being beyond the scope of his power, therefore, non application of mind on the part of Detaining Authority renders the order of detention as bad in the eye of law. 9. The non-supply of material forming base for the dossier has infringed the right of the detenue of making an effective representation as against the detention. In support of this contention learned counsel has rightly placed reliance on the judgments referred and quoted above. 10. Perusal of the record as produced would indicate that the detenue has been supplied only the copy of grounds of detention which fact is borne by the certificate recorded overleaf the order of detention available on the detention record. When it is so, the position is clear that neither the copy of the dossier nor the material forming base of said dossier has been furnished to the detenue, therefore, violation of a guaranteed right and violation to the law as referred above. The order of detention impugned thus being unsustainable is quashed. Detenue, namely, Ghulam Mohammad Payer S/O Gh. Ahmad Payer R/O Dardsun Kupwara shall be released forthwith provided he is not required in connection with any other case. 11. Detention record be returned to the learned counsel for the respondents. Petition accordingly succeeds as above.