Mohd.Akbar Sheikh vs State

Detention order No. DMS/PSA/10 dated 18.5.2001 of district Magistrate, Srinagar (respondent No. 2) and the consequent detention of the

subject Mohd. Akbar Sheikh u/s 8 of J&K P.S. Act, 1978 is under challenge on various grounds. However, the counsel confines his submissions

and arguments only to noncommunication of the order and grounds with material to detenu and inordinate delay in execution of order of detention.

These pleas with facts are given in para 2, 7 and 10 of the petition. Respondents through respondent No. 2 detaining au thority has filed counter.

Mr. R. Fida, GA relying on the counter and record has countered both the grounds of challenge to submit that the order of detention is valid and in

order.

Para 10 of the petition reads as under:

That the detention grounds state that the detenu has been arrested in FIR No. 14/2001 U/s 7/25 I .A. Act of Police station Shergarhi Srinagar. It

was incumbent upon the detaining authority to furnish the copy of the said FIR alongwith the statements of the prosecution witnesses recorded

under Section 161 Cr. P.C. Non supply of copy of FIR and other material referred to in the detention grounds has not only prevented the detenu

from making an effective and purposeful representation to the Government but also renders the detention of the detenu illegal, void and

unconstitutional.

In reply though this para is not spe cifically replied but at page 3 of the reply it is stated :

It is denied that the detenu has not been served the grounds/order of detention. The material which formed the basis of passing detention order

was furnished to detenu. FIR was not basis of passing order, mention of FIR in the grounds was for reference purpose.

The order of detention begins as:

Whereas I, Bipul Pathak, IAS District MagistrateSrinagar am satisfied on the basis of records received from SSP Srinagar...

Obviously the basic facts given in the grounds and subjective satisfaction of the detaining authority District Magistrate, Srinagar is based and

derived from the report given by SSP, Srinagar to the detaining authority. On the detention file it is found that the dossier/feed back report of SSP,

Srinagar is available. Ad mittedly neither this report nor other material referred in the grounds like FIR and recovery of arms and ammunition have

been supplied to detenu, The record also shows that the detenu has been furnished the order and the grounds alone but not the material the basis

of the basis fact and information subject of the detention order. In such circumstances compliance with the mandatory provisions of Article 22 (5)

is not complied with, in absence of material/documents report referred in the grounds. The detenu cannot be said to be communicated detention

order with grounds. This being so the compliance with second limb of affording detenu meaningful and effective representation against the Govt. is

equally denied to him.

In Sophia Gulam Mohd. Bhan Vs. State of Maharashtra & Ors. (AIR 1999 SC 3051), the Apex court observed that

...The right to be communicated the grounds of detention flow 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 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 thosegrounds are based are also

disclosed and copies thereof are supplied to the person detained, in his own language...

In Gh. Mohd. Mir Vs. State of J&K & Anor. (HC Pet. No. 93/99) decided on 30.12.1999) this court observed that :

...In the circumstances, the detenu cannot be said to have been provided an opportunity and the means to make meaningful and effective

representation against the detention as guaranteed apart from provisions of Public Safety Act, by Article 22 of the Constitution. So long the

material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or

denied to the detenu, the detenu cannot be said to be communicated the grounds with material, if so, detenu is denied opportunity ""to make

representation.

It is seen in this case that while the subject was in punitive detention in a regular criminal case preventive detention order was passed on

18.5.2001. However, this detention order was executed and detenu put under preventive detention/custody on 18.7.2001. There is no explanation

whatsoever for this delayed execution. The reasons are not also given what made the State Govt. and detaining authority not to execute the order

for about 60 days. The proximate and live link between the grounds and purpose of detention appears in the facts and circumstances of the case,

snapped.

. In K.P.M.Basheer Vs. State of Karnatka, and Anr. (AIR 1992 SC 1353) 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 of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him...

In result, the detention is vitiated and consequently detention order is quashed. Respondents/detaining authority/officer having physical corpus of

the detenu Mohd. Akbar Sheikh S/o Wali Mohd. Sheikh R/o Kramboor Kupwara, is directed to release him from custody and set him at liberty

forthwith provided the detenu is not required in any other case, offence or matter.

Copy of this order be given to petitioner free of cost. Communicate the order to the concerned. Record produced by Ld. GA Mr. R. Fida has

been returned to him.