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2012 DIGILAW 283 (JK)

Syed Imtiyaz Hyder v. State of J&K & Ors.

2012-05-25

MOHAMMAD YAQOOB MIR

body2012
1. Detenue, Syed Imtiyaz Hyder, through his wife, Khatija Syed, has filed the instant petition seeking quashment of the detention order No. DMB/PSA/01 of 2012 dated 04.01.2012 2. First it is contended that the order of detention has not been supplied to the detenue. Same position has not been controverted and is furthermore supported by letter dated 04.01.2012, issued by District Magistrate to the detenue informing him that he has been detained under order No. DMB/PSA/01 of 2012 dated 04.01.2012. Copy of the same letter has been send to Superintendent, Central Jail, Srinagar, wherein it is recorded that the copy along with copy of grounds of detention, dossier and other relevant documents on which the grounds are based i.e. FIR, seizure memo be communicated to the detenue against proper receipt. So this letter by itself shows that the order of detention dated 04.01.2012 has not been supplied to the detenue. Effect of non-supply of the order of detention is that the order is vitiated. Same position is settled by this Court in the judgment reported in S.L.J. 1988 346 and S.L.J. 1991364. 3. In the judgment rendered by this Court in case Abdul Rashid Saraf v. State & anr (S.L.J. 1988 346), it has been held that the non-supply of order of detention has deprived the detenue of his fundamental right to make effective representation. 4. In the judgment rendered in Ghulam Mohammad Halam v. State of J&K (S.L.J. 1991 364), it has been held that the supply of detention order to the detenue is mandatory, failure thereof renders the detention illegal. 5. Next contention of the learned counsel for the petitioner is that the detenue has been informed to make representation to the Government but not to the Detaining Authority i.e. District Magistrate which is a violation of the right. In support of this contention reliance is placed on the judgment captioned State of Maharashtra v. Santosh Shankar Acharya ( AIR 2000 SC 2504 ), wherein it has been held that non-communication of the fact to the detenue that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government would constitute an infraction of a valuable right of the detenue under Article 22(5) of the Constitution. 6. 6. In the case in hand, admittedly detenue has not been informed that he has a right to make representation to the detaining authority i.e. District Magistrate, therefore, infraction of valuable right. 7. Next contention that the grounds of detention is the verbatim copy of the dossier with small changes of words here and there, on perusal of the records is found to be genuine because in the dossier in the beginning of every para it is record "the subject" whereas in the grounds of detention every para begins with the words "you were, you have", rest of the wording is same as contained in the dossier. When it is so, non-application of mind is the only inference which can be drawn. Similar position has been dealt with by this Court in the judgment rendered in the case captioned Sh. Fiaz Ahmad v. State of J&K & anr, reported in 2010(11) S. L. J 872, 2010 (2) JKJ [HC] 909 wherein, while relying on various judgments of the Hon'ble Apex Court and various judgments of this Court, it has been held that there has not been due application of mind by the detaining authority in passing the detention order. The law, as has been laid down, squarely applies to the present case. 8. Next it is contended by the learned counsel for the petitioner that in the grounds of detention as well as dossier detenue is shown to be involved in the cases registered as FIR Nos. 263/2009, 306/2010, 311/2010, 403/2010, 406/2010 and 407/2010 P/S Budgam but it is nowhere shown as to whether the detenue in connection with said cases was released on bail except in one case i.e. FIR No. 407/2010, it is recorded that the detenue has been released on bail. The Detaining Authority was required to make it clear as to whether in other cases detenue was released on bail or had to record satisfaction that there are reasonable and plausible grounds to believe that the detenue is likely to be released on bail in the said connected cases and on recording such satisfaction order to detention could be validly passed. 9. 9. The position of the grounds of detention as it is would suggest that the detenue has been involved in various activities prejudicial to the public order in the year 2009-2010 as the last case for alleged activities has been registered as FIR 407/2010 on 13.9.2010. From 13.9.2010 till 4.1.2012 i.e. for a period of more than one year, no activity prejudicial to the public order or any other activity, criminal, anti national or anti social, has been attributed to the detenue and in case it would have been so, same would have been made mention of in the grounds of detention. 10. The star question which emerges is that when the detenue was not noticed to be involved in any type of activity prejudicial to the public order or security of the State in the year 2011, was there requirement of passing the order of detention. The answer has to be no because the object and purpose of passing the preventive orders is to deter a person from indulging in activities prejudicial to the public order or prejudicial to the security of the State etc. The order of prevention is to work as deterrence, it is not punitive. When the detenue is not noticed, nor it is reflected in the grounds of detention, to have been involved in any kind of such activities in the year 2011, there could be no reason for passing the order of detention in the month of January, 2012. Learned Additional Advocate General was pointedly asked to controvert this position but detention records, as are available with him and produced for perusal, disabled him from controverting the same. 11. For the foregoing reasons, circumstances and the position of law, order of detention impugned does not survive the test of judicial scrutiny, therefore, there is no option but to quash the same which is accordingly quashed. Detenue directed to be released forthwith provided not required in connection with any other case. 12. Detention records, as produced, be returned to the learned counsel for the respondents. 13. Disposed of as above along with connected Cr. M. P.