Javid Ahmed Khan vs State of Jammu & Kashmir

Syed Bashir-Ud-Din, J.—Subject Javid Ahmed Khan is detained by District Magistrate Srinagar (respondent No. 2) on 15.1.2002 u/s 8 of

J&K Public Safety Act, 1978 under this order No. DMS/PSA/49 dated 15.1.2002. This order has been implemented and detenu taken

preventive custody. The order and the consequent detention is under challenge in this petition. Notwithstanding the number of grounds taken the

petitioner's counsel urges lone ground to convass that detention is vitiated for non-supply of record and material referred in the grounds and

thereby the detenu is disabled to make an effective and meaningful representation against the order to Government within the meaning of Article

22(5) of the Constitution.

Ld. Counsel for the respondents submits that the grounds of detention have been supplied to detenu and the detenu has been afforded sufficient

opportunity to make representation which he has not done. The counsel further submits that the detention is not vitiated on that count.

Para 2(a) of the petition reads as under :-

That no order of detention, grounds or the material referred to and relied upon has been furnished to the detenu as such the order is liable to be

set aside.

There is no specific denial of the Para 1, vaguely, in grounds 2(a) under the head para-wise reply, it is stated as under:-

Ground (a) is vehemently denied in view of above submissions."" The order of detention reads as under ;-

Whereas I, Abdul Hamid IAS District Magistrate Srinagar am satisfied on the basis of records received from SP Ganderbal that wit a view to

prevent Shri Javid Ahmad Khan S/o Shri Abdul Khaliq Khan R/o Daribal Ganderbal, from acting in any manner prejudicial for the maintenance of

Security of the State it is necessary to do so.

A combined reading of the above paras of petition allegation, statement in the counter and the order of detention show that the detaining

authority while passing the impugned order and detention, has drawn subjective satisfaction on the basis of record which has been received from

SSP Ganderbal. On examination of the Grounds of detention, it can be fairly seen that number of terrorist activities are attributed tote detenu in

respect of which criminal cases have been registered against him and arms and ammunition is also recovered from him. He is charged not only

under Indian Arms Act but also for number of murders in different cases. Obviously all these incriminatory facts are based on some record made

available to the detaining authority. Notwithstanding the detaining Authority has not specifically denied the allegation of non-supply of the

record/material, but while examining the decisional process of detention in question and leaving the question of decision in respect of satisfaction

qua the detention to the detaining authority, as is to be done a requirement of law, the conclusion is irresistible that the detenu has not been supplied

material, documents, record, dossier and report referred to the detaining authority, forming the basis of his satisfaction qua the impugned order and

the consequent detention. In such circumstances it cannot be said that the detenu has been communicated the order of detention as mandated by

Article 22(5) of the constitution and as a statutory requirement of Section 13 of P. S. Act, 1978.

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , the Appex 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 and copies thereof are supplied to the person detained in his own language.

In Naseer Ashmed Sheikh v. Additional Under Secretary Home and Anr. 1999 SLJ 241 a Division Bench of this court 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. No where is it pleaded much less shows 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.

In result for the aforesaid view of the matter in my opinion, the detention order and the consequent detention is vitiated and cannot be sustained.

The impugned order is accordingly quashed. Respondents/authority/officer having physical corpus of the detenu Javid Ahmed Khan S/o Ab.

Khaliq Khan, R/o Daribal Ganderbal shall release him forthwith and set him at liberty provided not required in any case, offence or matter including

those referred in the grounds of detention.

Copy of this order be given to petitioner free of cost. Registrar Judicial to take follow up action.