Bashir Ahmed Mir vs State and Others

Muzaffar Hussain Attar, J.—One Bashir Ahmed Mir @ Bashmir Molvi S/o Late Mohd Rehmatullah R/o Nathpora Bandipora A/P

Allocdhibagh, Srinagar has been ordered to be detained by District Magistrate Srinagar vide order No. DMS/PSA/153/2010 dated 10th Feb.

2011 in exercise of powers conferred on it u/s 8 of Public Safety Act 1978(for short Act of 1978). It is this order which is called in question in this

petition.

On notice issued, respondents have filed reply affidavit/counter affidavit. Record has been produced.

Heard Id counsel for parties. Considered the matter.

Ld counsel for petitioner submitted that the grounds of detention are vague and on such vague grounds no citizen of the State can be deprived of

his personal liberty as guaranteed under Article 22 of the Constitution of India. Ld counsel also submitted that the detaining authority while passing

the detention order has relied upon the communication of SSP Srinagar and also the material record, such as, dossier and other connected

documents, but neither the copy of the dossier has been provided to the detenu nor it has been spelt out as to what are other connected

documents, which has prevented him from making representation against the detention order as guaranteed under Article 22(5) of the Constitution

of India.

Ld counsel for respondents submitted that the activities of the detenu were such which necessitated his detention under the provisions of J&K

Public Safety Act of 1978. Ld counsel submitted that none of legal/constitutional rights of the detenu have been infringed. The petition deserves to

be dismissed.

Perusal of the record reveals that the detenu has been supplied with grounds of detention comprising of two leaves. The record does not reveal

that any other document has been furnished to the detenu.

The Hon'ble Supreme Court in case titled Wasiuddin Ahmed Vs. District Magistrate, Aligarh, U.P. and Others, has ruled that when the material

which has been relied upon while passing the detention order if not supplied to the detenu, the grounds of detention are incomplete and on this

ground the detention order has been set aside. The relevant paragraph of the judgment is reproduced as under:-

this court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperative indicated in

Art. 22(5) are twofold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the

detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity

of making a representation against the order of detention. The right to make a representation implies what is means the right of making an effective

representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents.

The detenu, therefore, has right to be furnished with the grounds of detention along with the documents relied upon. Khudiram Das Vs. The State

of West Bengal and Others, , Narendra Purshotam Umrao Vs. B.B. Gujral and Others,

The detaining authority in the detention order has stated that he has considered the material on record such as dossier and other connected

documents, what are the other connected documents have not been spelt out. The detention order suffers from lack of application of mind.

For the above stated reasons, this petition is allowed. By issuance of writ of certiorari detention order No. DMS/PSA/153/2010 dated

10.02.2011 passed by respondent No. 2 is quashed. The detenu namely Bashir Ahmed Mir @ Bashmir Molvi S/o Late Mohd Rehmatullah R/o

Nathpora Bandipora A/P Allocdhibagh, Srinagar be released from preventive custody.

Record is returned to Id Government Advocate in open court. Disposed of.