Habib Hisham Pandit vs State and Others

Sayed Bashir-Ud-Din, J.—Petitioner has been initially taken in custody on 14/15 Sept. 2002 in FIR No. 109/2002 u/s 7/25 LA. Act,

registered at Police Station M.R. Gunj, Srinagar. During the punitive detention, he was detained u/s 8 of J&K P.S. Act by District Magistrate,

Srinagar under his order No. DMS/PSA/76 dated 31.10.2002. This preventive detention order and the consequent detention is under challenge in

this petition. Though, the order is challenged on number of grounds but the counsel has urged following two grounds in support of his submission to

assail the order of detention.

First, the counsel submits that the material like copies of grounds order of detention, dossier etc. has not been furnished to the detenu and

thereby the detenu is prejudiced.

Second, that the petitioner moved representation to the government, which representation has not been considered either by the detaining authority

or the Government and thereby his constitutional and statutory right has been violated.

Mr. M. M. Khan, AAG, refutes both these grounds and submits that the grounds of detention incorporated necessary details of whole range of

activities of detenu and thereby he is not prejudice, more so when the detenu states that he has made representation against the detention order.

Regarding the second contention, the counsel submits that the representation is not born by the detention record and therefore, the allegations of

non-consideration of the representation is denied. The counsel further submits that reply filed by the District Magistrate, Srinagar, among other

things contains the information as submitted above.

Para 11 of the petition reads as under :-

That the material such as, copy of ground of detention order of detention, copy of dossier other connected material referred in the grounds of

detention and material considered by the detaining authority has not been furnished to the detenue no-supply of the material prevented the detenu

to make a representation against the detention on this ground also, the detention of the detenue is illegal and renders to be quashed.

In reply to above said para, para 6 of the counter reads as under :

That in reply to para 11 it is submitted that the grounds of detention give the necessary details of the activities in which the detenu is involved

therefore no prejudice has been caused to the detenu that too when he is stated to have represented against the same.

The impugned order reads as under:-

Order No. DMS/PSA/76

Dated: 31.10.2002

WHEREAS IABDUL HAMID, IAS DISTRICT MAGISTRATE SRINAGAR, am satisfied on the basis of records received from SSP. Srinagar

that with a view to prevent......

Sd:- District Magistrate,

Srinagar.

A combined reading of the detention order and Para 6 of the counter as reproduced above would reveal that while the detaining authority

District Magistrate speaks of his satisfaction being drawn from the records received from SSP, Srinagar, a fact not denied or refuted in grounds,

yet it is stated that details of the whole range of prejudicial activities of the detenu have been given in the grounds of detention. Mere statement of

giving the details in grounds is not same thing as supplying of material referred in the grounds. Whereas, the subjective satisfaction for the detention

in question is drawn by Detaining Authority on his own showing from the records made available to the detaining authority by the SSP, Srinagar,

yet in counter, it is no where stated that such records were either supplied to the detenue or any material whatsoever was given to him. The petition

allegations that the detenu was not provided the dossier, report etc. (spoken of as records by the detaining authority), is unrebutted. Similarly, the

allegations that the material referred in grounds and considered by the detaining authority for the detention in question has not been at all supplied

to detenue is equally not refuted, notwithstanding that the counter has been filed by the detaining authority. The detention record produced, shows

that for the detention in question a report/dossier of SSP, Srinagar is on record. Besides the grounds show that petitioner has been attributed

subversive activities and involvement in lobbing number of grenades at various times on different dates within city of Srinagar. Such number of

incidents obviously, the basis of detention referred in the grounds are based on material/document, This has emerged from the records of the SSP,

Srinagar supplied to detaining authority and the basis of detention in question. Seen thus, the detenue cannot be said to have been communicated

the grounds within the meaning of Article 22(5) of the Constitution and Section 13 of J&K P.S, Act, 1978. In Naseer Ahmed v. Dy. Chief

Secretary Home and Anr. 1999 SLJ 241 a Division Bench of this court has observed.

The ground of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the

detaining authority by the concerned SSP. No where is it pleaded, muchless shown, that the copy/copies of these reports of the police on which

the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenu so as to enable him to made an

effective representation against the order.

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , in the context of ""communication of grounds"" Supreme Court observed

:-

....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 detenu to make a representation against the order of detention. 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 detenu and the material

on which those grounds are based are also disclosed an copies thereof are supplied to the person detained, in his own language.'

The other contention that despite the petitioner having made representation to the Government against the detention order, same is not

considered by the Government, the respondents have not specifically mentioned that such representation was not made what has been stated is

that as representation is not forth-coming from detention record, therefore, same is denied. This contention of petitioner as contained in para 8 of

the petition is supported by Photostat copy of the representation addressed to Commissioner Secretary Department of Home J&K Government.

This copy of annexure P4 is supported by a Medical certificate issued by the Registrar Unit (I) SMHS Hospital Srinagar, that the detenue is

suffering from Rheumatic Heart Disease, since 1984 and that he is on Penicillin Prophylaxis. A photostat copy of postal receipt which the counsel

alleges is received from postal department in token of mailing the representation to the Pr. Secretary to Home Department through Registered post

is on record. As already stated making of a representation is not specifically and pointedly refuted. Mere saying that the representation is not forth-

coming from detention record would not suffice to show that the representation was either not made as alleged or the representation was not

received by the government. In absence of any material or pointed denial the presumption of due delivery of registered postal cover is there, more

so here in view of the allegations supported by an affidavit and in absence of rebuttal by the otherside. The detention record also no where shows

that any such representation was considered by the State Advisory Board, while examining the case of the detenue under provisions of J&K P.S.

Act. The Board examined the record and has not noticed or mentioned making of any such representation. In such circumstances the

representation if any made is not even considered by the Advisory Board. Faced with such situations, it cannot be said that the representation has

come under focus and is addressed by the government.

In the over all facts and circumstances, viewed as above, the detenue cannot be said to have been communicated the grounds as envisaged by

Article 22(5) of the Constitution and Section 13 of the J&K P.S. Act and thereby prejudicially affected to make representation against the order to

Government and the representation no matter, whether based on material referred in the grounds or other facts, is not considered and disposed of

for last about 9 months.

In result the detention is vitiated and the impugned order is legally infirm. The detention order is quashed. The respondent(s) /authority/offi-

cer/official having physical corpus of the detenue namely Habib Hishan Pandit S/o Hisham Salam Pandit R/o Kralpora, Hawal Srinagar, is directed

to set the detenue free and to release him forthwith provided not required in any case, offence or matter. Copy of the order shall be given to detenu

free of cost. Registrar Judicial to take follow up action. Detention record is returned to Mr. M. M. Khan, AAG. Disopsed of.