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2013 DIGILAW 755 (JK)

Mushtaq Ahmad Sheikh v. State

2013-12-27

ALI MOHAMMAD MAGREY

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1. Mst. Shahzada mother of the detenue- Mushtaq Ahmad Sheikh S/o Ghulam Mohi-Ud-Din Sheikh R/o Roshangar Mohalla, Saidpora Nowhatta, Srinagar, Kashmir has invoked the jurisdiction of this Court for quashing the detention order bearing No. DMS/PSA/17/2013 dated 29.09.2013 passed by the District Magistrate, Srinagar on the grounds taken in the writ petition. 2. Respondents have filed counter affidavit. 3. Heard, perused and considered. 4. Perusal of the record reveals that the impugned detention order bearing No. DMS/PSA/17/2013 dated 29.09.2013 came to be passed on 29.09.2013 but came to be executed on 09.10.2013, thus delay has crept in the execution of the impugned detention order, which is violative of provisions contained under the Jammu and Kashmir Public Safety Act. 5. There is nothing on the file, suggesting the fact that copies of FIR, dossier, seizure memo and other documents were supplied to the detenue in order to make an effective representation. Thus on this count, the detention order is bad. 6. In Sophia Ghulam Mohammad Bham v. State of Maharashtra and Ors. ( AIR 1999 SC 3051 ), the Apex Court has observed as under:- ".... 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 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...." 7. There is also nothing on the file suggesting the fact that notice was served upon the detenue for making a representation in terms of the provisions contained under the Jammu and Kashmir Public Safety Act. 8. The detaining authority while passing the detention order has not spelled out the compelling reasons for detaining the detenue in preventive detention despite of the fact that detenue was in custody. Thus, on this ground the detention order needs to be quashed. 9. 8. The detaining authority while passing the detention order has not spelled out the compelling reasons for detaining the detenue in preventive detention despite of the fact that detenue was in custody. Thus, on this ground the detention order needs to be quashed. 9. The Apex Court in a Judgment reported in AIR 1995 SCW 1841 has held as under:- "When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention awareness of the fact that the detenue was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified". 10. In view of the above discussions, the petition is allowed, detention order bearing No. DMS/PSA/17/2013 dated 29.09.2013 passed by the District Magistrate, Srinagar is quashed with the command to the State to release the detenue namely Mushtaq Ahmad Sheikh S/o Ghulam Mohi-Ud-Din Sheikh R/o Roshangar Mohalla, Saidpora Nowhatta, Srinagar, Kashmir, forthwith provided he is not required in any other case. 11. Disposed of along with connected Cr. MP(s). 12. Record produced and returned to Mr. Mehraj-u-Din learned GA in the open Court.