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2011 DIGILAW 725 (JK)

Mohammad Sheikh v. State of J&K & Ors.

2011-12-23

MOHAMMAD YAQOOB MIR

body2011
1. Allegedly detenu is a timber smuggler and also instigate his associates to adopt the same path, so as to transport the illicit timber to Payeen belt. Forest damage cases have been recorded by the Forest Department referred to as Damage Case no. 35/2009-10, 93/2009-10,154/2009-10 and 36/2010-11. Noticing all these circumstances, Divisional Forest Officer (DFO) has prepared a dossier based on which impugned order of detention has been passed. In pursuance whereof detenu has been directed to be detained for a period of 12 months, by now the detenu is in custody for more than seven months. 2. Learned counsel for the petitioner first contended that the grounds of detention is the duplicate copy of dossier as prepared by Divisional Forest Officer (DFO) which would show that the detaining authority has not applied its mind. When the grounds of detention is copy of the dossier, that is enough for quashing the order of detention. In support of this contention reliance is placed on the judgment passed by this court in the case of Azad Ahmad Khan v. State of JK & ors. rendered on 6th November 2006 wherein while noticing the grounds of detention and the dossier and on finding the same to be identical, it has been concluded that non-application of mind on the part of the detaining authority is quite clear. 3. In the instant case, on careful perusal of the dossier and the grounds of detention, what would emerge is that only word in each para has been changed i.e. in the dossier every para starts with "the subject" whereas in the grounds of detention every para starts with "you are residing" or "you have turned" likewise. Rest of the words are the ditto of the dossier. 4. The formulation of grounds of detention on the basis of the material is a pre-condition for deriving satisfaction so as to order detention of a person. It appears that detaining authority has not adhered to the same and it appears that the concept of deriving subjective satisfaction has become casualty which in turn renders the order of detention as illegal. 5. It appears that detaining authority has not adhered to the same and it appears that the concept of deriving subjective satisfaction has become casualty which in turn renders the order of detention as illegal. 5. One more important circumstance which is to be noticed so as to indicate that the detaining authority has not applied its mind is that from!2th August 2010 when the last damage case was registered, no other activity has been noticed upto 29th April 2011 i.e. the date of order of detention. When for a period of about seven months no such activity was noticed what was the requirement of passing the order of detention. 6. The next contention of the learned counsel is that the material forming basis for passing the order of detention has not been furnished to the detenu which has disabled him for making any effective representation as against the order of detention. On perusal of the record, it is discernible that the grounds of detention and warrant of execution has been read over to the detenu and furnished to him, but no affidavit has been filed on behalf of officer, who is shown to have served the grounds of detention to the detenu. 7. Furthermore, the other material forming basis for the grounds of detention is not shown to have been furnished to the detenu, therefore, violation to the right of making effective representation is apparent. 8. Learned counsel appearing for the respondents with all seriousness highlighted thot forest wealth is being damaged, felling of trees is rampant, therefore, persons who indulge in causing damage to the forests do not deserve any leniency. Learned counsel is right that causing damage to the forests is quite disturbing prevention of the same is unavoidable same shall be a concern for one and all. The detenu has been in custody for more than seven months. The preventive orders must satisfy the requirement of law, right to liberty has also to be protected, and unwarranted incarceration shall not be permissible. 9. Viewed thus in the backdrop of above stated circumstances, order of detention bearing no. DMB/PSA/49of 2011 dated 29th April 2011 is found unsustainable, as such, quashed. 10. Detenu is directed to be released forthwith, if not involved in any other case. 11. Detention record be returned back to learned counsel for the respondents.