Feroz Ahmed Mehand vs State

Syed Bashiruddin, J.—The detention order No. 37/DMP/ 2000 dated: 20.07.2000 passed by District Magistrate, Pulwama (Respondent

No. 2) as approved by the State Government (Respondent No. 1) detaining Feroz Ahmad Mehandu/s 8 of J and K Public Safety Act, 1978 with

a view to prevent him from acting in any manner prejudicial to the security of the State is under challenge in this petition.

Though number of grounds are taken to assail detention but the only grounds of challenge pressed by petitioner's counsel as referred in para 3 of

the petition are that the detenu has not been served the order of detention and grounds therefor. The grounds are not explained to him in the

language which he understood. He is not supplied material/documents referred in grounds. Detenu is not informed of his right to make

representation to govt. against detention order. He is denied opportunity to make the representation.

Respondents have filed counter through the detaining authority (respondent No. 2) and also produced detention record which was retained on

the file. Respondents contended that the detention order at the time of execution on 25.07.2000 was read over and explained to detenu in the

language which he understood and grounds therefor have been also served and explained to detenu. The only material on which detention is based

are grounds.

Heard.

On examination of record and in the light of contention advanced by the parties, it is seen that the detenu has been served the order of detention

but not the grounds or material on which the grounds are based. Though detention record produced reveals that the detenu was supplied copy of

the order of detention at the time of execution of the order through a selection grade constable of P/s Pulwama, the acknowledgment and

endothersement speaks of execution of the order qua handing over of the detenu to Central Jail, Srinagar for preventive custody and handing over

of the copy of the order to detenu. In token of the receipt thereof thumb impression of the detenu has been taken. It shows neither copy of the

grounds was served nor any other material was supplied to detenu. It is also seen that the order of detention speaks that it has been passed ""on the

bases of grounds of detention placed before him"" (meaning thereby District Magistrate, Pulwama). In the grounds besides the introductory remarks

and background facts, statement of association of detenu with HizbulMujahideen outfit, motivation of youths to join this militant outfit, detenues

arrest in a regular criminal case, recovery of arms and ammunition at his instance, association of some other alleged militant namely Khurshid

Ahmed Bhat are based on some information, report etc. fed to the detaining authority. In fact this aspect gets cleared when one notices on record

of this file, dossier/report of Superintendent of police District, Pulwama. The material admittedly has not been supplied to the detenu. There is

nothing on record to show that the grounds were at all supplied to him and in case so supplied if same was explained to him. Evasive reply and

bald assertion of supply of grounds and explaining same to detenu, would, in the facts and circumstances of the case, hardly displace the onus on

respondents as requirement of law. The petitioner/detenu's allegations that the grounds and the material has not been supplied to him and that the

grounds have not been explained to the detenu is not disproved by respondents. It is interesting to note that for supply of grounds it is stated in the

counter that an endothersement bearing thumb impression of detenu has been obtained and placed on record. But detention record/file shows that

the endothersement with thumb impression of detenu on record is on the endothersement that detention order is executed and detenu is handed

over to the Jail authorities, besides that the contents of warrant are explained to the detenu. It no where speaks off explanation of grounds to

detenu. The contention that the material was not supplied to detenu and also that the grounds were not explained to detenu and illiterate person is

substantiated on record, The onus to negate these allegations is not discharged by the respondents. Viewed thus neither the grounds on which

order of detention is based is communicated to the detenue nor the detenue is afforded an opportunity of making a representation against the order

or detention.

In Magalbhai Mortirm Patel vs. State of Maharashtra and Others. case (AIR 1981 SC 510), the Apex court observed that:

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

Article 22(5) are twofold; (1) the detaining authority must as soon as may be, that is, as soon as practicable, after the detention communicated to

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

of making a representation against the order of detention. The right to make a representation implies what it 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 the right to be furnished with the grounds of detention along with the documents relied upon.

In Smt. Icchu Devi Choraria vs. U.O.I. and Others (AIR 1980 SC 1983), the Apex court in the context of communication of grounds of

detention held that:

... What is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other

materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of

detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not

therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other

materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Cl. (6) of

Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Subsection (3) of the COFEPOSA Act....

In Sophia Gulam Mohd. Bham vs. State of Maharashtra and Others. (AIR 1999 SC 3051), the Apex Court observed that:

...The right to be communicated the grounds of detention flow 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 detenu 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...

In Gh. Mohd. Mir vs. State of J and K Anor. (HC Pet. No. 93/99) decided on 30.12.1999) this court observed that:

...In the circumstances, the detenu cannot be said to have been provided an opportunity and the means to make meaningful and effective

representation against the detention as guaranteed apart from provisions of Public Safety Act, by Article 22 of the Constitution. So long the

material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or

denied to the detenu, the detenu cannot be said to be communicated the grounds with material, if so, detenu is denied opportunity to make

representation."" ,

For the aforesaid reasons the impugned order of detention is found vitiated and consequently the detention is illegal. The impugned order is

quashed. Respondents/ competent authority having physical corpus of the detenu Feroz Ahmed Mehand S/o Abdul Gaffar Mehand R/o Trichal

Tehsil District Pulwama is/are directed to release him from custody an set him at liberty forthwith, provided he is not required in any other case or

substantive offence. Communicate this order to concerned and give copy of this order to petitioner free of cost.

The record is returned to Mr. A.M. Watali, GA in open Court.