Mohammad Yaseen Rather, alias Tahir vs State

Syed Bashir-ud-din, J.—Subject Mohd. Yasin Rather alias Tahir is detained U/s 8 of J&K P.S. Act. 1978 in order to prevent him from

acting in any manner prejudicial to the Security of the State by District Magistrate, Budgam under his order No. DMB/PSA/9 of 2002 dated

6.5.2003. This order is under challenge in this petition.

Following contentions are urged in support of the petition. First that the detenu has not been supplied material referred in grounds of detention

and consequently subject has not been in a position to file an effective and meaningful representation against detention to the Govt.

Second that there has been inordinate delay in execution of the order. The delay of about 25 days in executing/implementing the order, when the

subject was with the State Govt. and the authorities, in absence of any explanation vitiate the detention.

Counter is filed by detaining authority and the Ld. GA has urged that the material details have been stated and reflected in the grounds of

detention which are served on detenu. Therefore, even if the material is not supplied to detenu he is not prejudiced to make representation against

the order when he is informed and had an opportunity to make the representation. The counsel concedes that though detention order is passed on

6.5.03, it is executed on 30.5.03 and no explanation is forthcoming from record for not implementing the order.

The ground 4(f) and (g) is extracted below from petition. 4. f) That the detenu has not been given material referred to in the grounds of detention

by respondent No. 2. He has (g) not, therefore, in a position to file a representation against the grounds of detention. The detenu has also neither

been provided with the copy of FIR No. 127/2002 nor any other material referred to and relied upon by the detaining authority in the grounds of

detention. The detention of the detenu on that ground is liable to be set aside.

In counter though ground f & g are not specifically replied but it is stated in clause (f) in reply to Para (e) that the necessary details have been

narrated in the grounds of detention and the subject in absence of supply of the material is not prejudiced to make representation.

The impugned order of detention dated 16.5.03 available on detention file reads as under:-

Whereas Superintendent of Police Budgam vide No. Pros/Dos-21/91-94 dated 12.16.2002 has produced material record viz a dossier, FIR and

investigation report in respect of Shri Mohd. Yaseen Rather alias Tahir S/o Abdul Satar Rather R/o Bonishah Tehsil Chadoora District Budgam

who has been reportedly arrested by Police Budgam in case No. 127/02.

Whereas, I have gone through the contents of dossier produced before me carefully.

Whereas, after due consideration of the facts and circumstances involved I am satisfied that with a view to preventing Shri Mohd. Yaseen Rather

alias Tahir S/o Abdul Satar Rather R/o Bonishah Tehsil Chadoora District, Budgam from acting in any manner prejudicial to the Security of State,

it is necessary so to do.

Now, therefore, in exercise of powers conferred by Section 8 of J&K P.S. Act, 1978, I Bashir Ahmed, District Magistrate, Budgam hereby direct

that the said Mohd. Yaseen Rather alias Tahir S/o Abdul Satar Rather R/o Bonishah Tehsil Chadoora District Budgam be detained and lodged in

Sub-jail Kotbalwal for a period of 24 months.

The grounds of detention further show that the subject was arrested on 17.11.2002 in FIR No. 127/2002 U/s 7/25 Arms Act registered at P/s

Chadoora and certain recoveries of arms and ammunition and radio set were effected from him. Besides he is stated to be militant of Hizbul-

Mujahideen involved in attack on BSF Men in Chadoora.

A combined reading of this Habeous Corpus petition and counter averments in juxtaposition with above quoted detention order and the grounds

fully reveal that the detention order has been passed on the record which included dossier, FIR and investigation report etc. The allegations in the

grounds are derived from this record. If it is so then as observed in Naseer Ahmed Sheikh Vs. Addl; Chief Secretary Home & Anor. 1999 SLJ

241 by a Division Bench of this court. Copies of the report of the SSP on which the detaining authority has based its satisfaction to pass the

detention order have to be supplied/provided to the detenu to enable him to make effective representation if it is not done the detention is vitiated.

The right to communicate the grounds is mandated by Article 22(5) of the Constitution and statutorily prescribed by Section 13 of J&K P.S.

Act. The supply of material on which the grounds are based is with a view to enable the detenu to make effective representation unless the basic

facts are not disclosed and all the material is not supplied to the detenu where is the opportunity for him to make an effective representation as

guaranteed to the detenu by Article 22(5) of the Constitution. So long, the material on which the factum or conclusions constituting the grounds are

peped up and is basis of subjective satisfaction of the detaining authority, is with-held or denied to the detenu the detenu cannot be said to be

communicated the grounds with material. See Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, Mangalbhai Motiram Patel Vs.

State of Maharashtra and Others, Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, and Gh. Mohd. Mir Vs. State of J&K & Anor.

(HC Pet. No. 93/99) decided on 30.12.1999. Viewed thus the detention is vitiated on this count.

It is seen from record that the order of detention is passed on 6.5.2003 and it has been implemented and the subject taken in preventive

custody on 30.5.03. During this period although subject was with the respondents. There is no explanation on record for this delayed execution of

the order.

In counter apart from accepting that there is delay of about 25 days in implementing the order, no explanation whatsoever is given as to why

such inordinate delay was caused to execute the order. Even the detention is not revealing anything on that count and no explanation or reason is

forth coming to explain the delay. Notwithstanding the subject was in custody of the State Govt. yet it took respondents 25 days to transfer the

custody of the subject from punitive to preventive detention. It is indicative of doubt as to the genuineness of the required subjective satisfaction of

the detaining authority from the standpoint of 'proximate and live link' between the grounds of detention and purpose of detention. This is msore so

when there is nothing on record even either in the impugned order or grounds therefore that the detenu ever applied for bail in the regular FIR in

which he was held or that there was any order or move to admit him on bail in the case. Contextually it needs to be noted that in the grounds

though it is mentioned that the subject was arrested on 17.11.2002 in FIR 127/02 registered at P/s Chadoora and was being held in that case till

the detention order was passed and later his custody was transferred from substantive to preventive detention, yet not even a whisper is made or

hint dropped in the grounds or order to show that the subject had ever applied for bail or that the detaining authority considered that the subject is

likely to come out on bail . The detention is legally infirm even on this count.

In result for the aforesaid view of the matter, detention order and consequent detention is vitiated and not within para-meters of law, therefore,

the order is quashed. Subject Mohd. Yaseen Rather @ Tahir S/o Abdul Satar Rather, R/o Bonishah Kralapora, Tehsil Chadura aged ____shall

be set at liberty and released forthwith from capitative in this detention case, provided not required in any other case, offence or matter. Disposed

of.

Registry for follow up action.

Copy of this order be given to detenu free of costs. Record produced by Ld. GA is returned to him in open court.