Manzoor Ahmad Dar vs State and Others

Mansoor Ahmad Mir, J.—Subject Manzoor Ahmad Dar son of Ghulam Nabi Dar resident of Konjoo Pulwama through his father Ghulam

Nabi Dar seeks to quash the detention Order No. DMP/PSA/PA/16 dated 19.07.2004 passed by District Magistrate, Pulwama in terms of

Section 8 of Jammu & Kashmir Public Safety Act, 1978, on the grounds taken in the petition. Respondents have filed reply.

Heard. Perused. Considered. The petitioner has pleaded that the grounds of detention and other material, mention of which is made in the

grounds of detention, have not been furnished to the detenue. Thus non-supply of the same is a ground for quashing the detention order.

While going through the reply, the respondents have pleaded that the detaining authority has relied on the grounds of detention only which runs

contrary to the contents of the impugned order, which reads as under:

Whereas, Superintendent of Police Pulwama vide his No. CS/PSA-04/27 dated 15.07.2004 respectively has produced material record such as

dossier and other connecting documents in respect of Manzoor Ahmad Dar S/O Gh. Nabi Dar R/o Kanjoo Tehsil Pulwama District Pulwama

under FIR No. 78/04 u/s 212 RAC 7/25 1.A. Act & 13 UL Act stands registered in P/S Rajpora.

While going through the impugned order, the detaining authority has relied on the grounds of detention i.e., dossier and other material. In the

given circumstances, the reply referred is not correct.

The petitioner has also pleaded that the detaining authority was under legal obligation to furnish the copies of the material, grounds of detention

and detention order to the detenue. The contents of all the material should have been read over to the detenue in his own language in order to

enable the petitioner to make an effective representation. The said mandate of law has not been complied with.

Mr. Wani argued that grounds of detention contents of the detention order, warrant of detention and the material were furnished and read over

to the detenue by the serving officer. The detaining authority has also informed the detenue to make representation in terms of the letter dated

19.07.2004.

There is compliance report of serving officer Mushtaq Ahmad 94/PL on the record, but the said report is not original one but is a Photostat

copy. The serving Officer has reported that he has read over the grounds of detention and the contents of impugned order in Urdu and Kashmir

language to the detenue. In which language, whether in Urdu or in Kashmir, the same has been read over to the detenue is best known to the

serving officer. The report nowhere discloses that other material was supplied to the detenue or contents of the same were read over to the

detenue. The matter would have been clinched, if there would have been affidavit of the serving officer on the file explaining that how, when and in

which language the contents of warrant, grounds of detention and other material were read over to the detenue.

This view is fortified by the Apex Court judgment reported in 2005 (1) JKJ 7 State Legal Aid Committee, J&K v. State of J&K and ors.

Thus the mandatory provision of law has not been complied with. On this count also, the detention order needs to be quashed.

There is nothing on, the tile or, record suggesting the fact that the detenue was informed to make representation. It was also the duly of the

detaining authority to inform the detenue that before whom he had to make representation. Letter dated 19.07.2004 issued by District Magistrate,

Pulwama and has been sent to Jail authorities for serving upon the detenue in order to make representation.

Letter dated 19.07.2004 reads as under;-

Where as you have been detained vide Order No. 16/DMP/PSA/04 made by me u/s 8 of J&K Public Safety Act, 1978.

Now therefore, in pursuance of Sub-section (2) of Section 13 of the said Act, you are hereby informed that your detention was ordered on the

grounds specified in the annexure hereto. You may inform the Home Department early if you would like to be heard in person by the Advisory

Board.

You may make a representation to the Government against the said detention order, if you so desire.

Sd/

District Magistrate,

Pulwama.

Copy to the:

Principal Secretary to Government Home Department J&K, Srinagar.

Superintendent, District Jail Kathua along with a copy of the grounds of detention and that of letter addressed to the detenue, which may be

communicated and delivered to him against proper receipt under intimation to this office.

The Superintendent, Central Jail Kathua has not furnished compliance report that whether this letter has been served upon the detenue or not.

It is worthwhile to mention herein that the detenue was taken in custody in terms of the detention order on 26.07.2004 while the letter was not

served to him in the police custody or judicial custody because he was in custody at that time.

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, , the Apex Court has held as under:

...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 detenue 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.

The Apex Court in case Mrs. Nutan J. Patel v. S.V. Prasad and Anr. reported in Crimes XII-1995(4) has observed as under:

...In relation to the detention of the detennes in Criminal Appeal Nos. 850 and 915 of 1994 under PIT NDPS Act, the Madras high Court

allowed the writ petition and sat aside the order of detention on the ground that the detenue was not informed of his constitutional right to make a

representation to the detaining officer and it vitiates the right guaranteed under Article 22(5) of the Constitution. The Court had upheld the above

view. It is seen that the detenue was informed on April 20, 1992 that he was at liberty to make a representation to the State Government, Central

Government and to the Advisory Board. It was asserted that he made a representation through the prison authorities to the Government of Andhra

Pradesh. In other words, from these facts, it would be clear that the detenue was no informed of his constitutional right to make a representation to

the specified Officer for reconsideration of his detention. In view of the law laid down by this Court, the failure on the part of the Specified Officer

to inform the detenue that he has a constitutional right to make representation to the Specified Officer against the order of detention violates

Articles 22(5) of the Constitution. The order of detention gets vitiated.

It is admitted that detenue was in custody at the time of passing detention order. It was duty of the detaining authority to assign compelling

reasons for detaining the detenue in terms of Public Safety Act but no such compelling reasons have been spelled out.

The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under:

When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order can not be

sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenue was in judicial custody at the time

of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support

of the averments made in grounds of detention that if the afore-said Surya Prakash Sharma is released on bail he may again indulge in serious

offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious

offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified.

In another case Amrit Lal and Ors. v. Union of India reported in (2001)1 SCC 341 their Lordships of the Supreme Court observed:

The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in

the reasoning available is the 'likelihood of his moving application for bail' which is different from 'likelihood to he released on hail'. This reasoning,

in our view, is not sufficient compliance with the requirements as laid down.

Thus applying the test to the case in hand, the impugned order needs to be quashed.

Accordingly, the petition is allowed.

The detention order is hereby quashed with the command to the State to release the detenue forthwith provided, he is not required in any other

case. Record be returned to Mr. M A. Wani, Dy. AG.