Hilal Ahmed Lone vs State and Others

Syed Bashir-Ud-Din, J.—Subject Hilal Ahmed Lone is detained U/s 8 of J&K P.S. Act, 1978 by District Magistrate, Pulwama

(respondent no.2) under his order No. DMP/PSA/79 of 2003 dated 21.7.2003 to prevent him from acting in any manner prejudicial to the

security of the State. The order and the detention is under challenge in this petition.

Though number of grounds have been taken in petition to question legality of the detention but Ld. Counsel has confined arguments to following

two grounds:-

First that the record, material and documents referred in the order and the grounds of detention have not been supplied to the detenu and thereby

disabling him to make an effective and meaningful representation to the Government;

Second that the detenu though with the respondents and its police agencies in punitive detention, has not been taken in preventive detention for

long 28 days after the impugned order was passed on 21.7.2003.This delayed execution of the order of detention on 21.8.2003 is fatal to

detention, in as much as, `proximate and live link' between the order of detention and the purpose of detention has ceased.

Ld. Counsel for the respondents submits that though the detaining authority has referred to records like dossier and documents but the detenu

has been supplied grounds with the order. He has been explained the detention order as well as grounds, therefore, is not prejudiced to make

representation. Counsel concedes that there is delay of 28 days in executing the order of detention though neither from the detention file nor record

any explanation is forthcoming for this delayed execution. The counsel still submits that the delay should not affect the detention on merits.

Impugned detention order No. DMP/PSA/79 of 2003 dated 21.7.2003 reads as under:

Whereas Superintendent of Police Pulwama vide his No. CS/PS-03/26 dated 15/7/2003 has produced material record such as dossier and

other connecting documents in respect of Hilal Ahmad Lone S/o Ab. Hamid Lone R/o Village Rawalpora Tehsil Shopian District Pulwama who

has been reportedly arrested in case FIR No. 153/03 U/s 307 RPC,7/27 I.A. Act registered in Police Station, Shopian.

Whereas I am satisfied that with a view to preventing Shri Hilal Ahmad Lone S/o Ab. Hamid Lone R/o Village Rawalpora Tehsil Shopian

District Pulwama from acting in any manner which is prejudicial to the security of State, and it is necessary so to do..

In para 3 (ix) it is alleged that, the detenu has not been supplied with the material upon which the order of detention is passed, besides the order

of the detention and the grounds. The order of the detention and the grounds have not been supplied to the detenu within the stipulated period of

time, the copy of the dossier framed by the Police authorities, the copy of the FIR, the statement of the witnesses have not been communicated to

the detenu in the detention, therefore, he has been deprived of the making an effective representation as envisaged under Article 21 of the

Constitution of India which renders the detention bad in law and liable to be quashed.

In reply to this para it is stated:-

that the grounds of detention have been furnished to detenu against the proper receipt all the details were given in the grounds of detention.

10 .A combined reading of the petition allegations, counter and detention order would more than make out that the detaining authority has relied on

material/ record such as dossier and other connected documents which record, dossier and documents have not been supplied to detenu. The

grounds of detention reveal that the incriminating, prejudicing and anti-national activities attributed to the subject are based on material and

documents. In such circumstances, failure to supply the material, documents and dossier to detenu violates mandate of Article 22(5) of the

Constitution and violates statutory obligation of the State as provided by Section 13 of the J&K P.S. Act. The subject cannot be said to have been

communicated the basic facts and the information on which the detaining authority has drawn subjective satisfaction.

In Naseer Ahmad Sheikh Vs. Addl; Chief Secretary Home and Anor., Division Bench of this court to which I was a party 1999 SLJ 241

observed:-

The grounds 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. Nowhere 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 make an effective

representation against the order.

The detention cannot be sustained for the aforesaid reasons on this count.

There is no denying of the fact that the detention order is passed on 21.7.03. It is equally admitted even in counter by the respondents that the

order has been executed on 21.8.03. The record also shows that during this period the detenu was with the respondents and its police agencies. In

terms of the grounds (annexure p-1) and the facts as revealed in petition and counter it is more than made out that the subject was apprehended

and detained in FIR 153/03 U/s 307 RPC registered at P/s Shopian on 8.7.03. There is no explanation or reason either in detention file or on

record of this file to show why the order was not executed all along. In the facts and circumstances, delayed execution of the impugned order is

fatal to this case. The `proximate and live link' between the purpose of detention and the grounds is not shown to subsist on material relevant date.

In K.P.M. Basheer Vs. State of Karnataka and another, it is observed:-

under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link' between the

grounds and purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him

In the aforesaid view of the matter, detention order is vitiated and therefore quashed. Respondents/detaining authority/officer having corpus of

the detenue Hilal Ahmed Lone S/o Abdul Hamid Lone R/o Rawalpora Tehsil Shopian, District Pulwama aged __ is directed to release him from

custody and set him at liberty forthwith, provided not required in any other case, offence or matter. Registry to follow up action.

Copy of this order be given to petitioner free of cost.