Nissar Ahmad Mir vs State of J & K

Nissar Ahmad Mir S/o Abdul Gani Mir R/o Kralcheck Tehsil Shopian, District Pulwama, has been detained under Section 8 of the Jammu and

Kashmir Public Safety Act in order to prevent him from acting in a manner prejudicial to the security of the State for a period of 24 months by

District Magistrate, Pulwama, respondent No. 2, under his Order No: 1/DMP of 1999 dated 09011999. This detention order is challenged in this

petition on number of grounds specified in the petition.

Respondents through respondent No. 2, District Magistrate, Pulwama have filed counter.

The counsel for the petitioner submits that he is confining challenge to the detention order on a solitary ground that the detention is bad for the

reason that the detenue has not been supplied the grounds with the material and documents, the basis of detention order thereby he has been

disabled to make a representation against the detention order to the Competent Authority/Government. To elaborate his arguments, further, the

counsel has referred to ground (viii) of the grounds pleaded to challenge the detention order, which reads as under:

(viii).....For that no even an iota of material on which the alleged grounds of detention are supposed to be founded, including copy of FIR referred

to the grounds of detention has been furnished or made available to the detente by respondents in compliance with the mandate of Article 22

clause 5 of the constitution of India as applicable to the State of Jammu and Kashmir entraining irretrievable prejudice to the detenue in the matter

of making effective representation to the Advisory Board against the fraudulent order of detention in exercise of fundamental rights guaranteed to

the detenue by Article 22 of the Constitution of India and insequel thereto, the impugned detention is rendered liable to be quashed and the

detenue entitled to be set at liberty forthwith under the appropriate writ of this Hon'ble Court.

The Government Advocate, Mr. M. Amin, has referred to the counter, wherein the Advocate submits that the grounds of detention order have

been read over and explained to the detenue in Urdu while executing the detention order on 01021999. The grounds of the detention were

received by the detenue without a murmur. The procedure prescribed by Jammu and Kashmir Public Safety Act, has been followed in letter and

spirit and the detention of the detenue is in order. However, reading between the lines the counter, it can be fairly concluded that the above express

and specific allegation of non supply of the material/documents, the basis of grounds of detention, has not been at all refuted.

In counter, it is no where refuted or even replied that the documents/material basis of the grounds were ever supplied to the detente. In fact the

specific part has not been at all replied. In reply, under preliminary objections, it is specifically mentioned, ""That the detaining authority/respondents

received report in the form of dossier from the Superintendent Police Operation Pulwama against the petitioner and the answering respondent

came to the conclusion that the activities of the detenue/petitioner being highly prejudicial to the security of the State which warrants the detention

of detenue under Public Safety Act. The grounds of detention were prepared on the basis of dossier."" Thereafter, the grounds have been quoted in

extenso. It is obvious that the grounds are based on the dossier or report from the Superintendent of Police Operations Pulwama against the

detenue. Besides, the grounds also mention arrest of accused on 181298 and registration of a case FIR 117/98 under section 7/25 IAA, 13

Wireless Act at Police Station Rajpora and speak of recovery of Arms and ammunitions. Neither the copy of the dossier nor FIR nor

copies/material of recoveries effected through memos have been supplied to petitioner. All this forms the basis of the detention. The right to supply

all the material on which the grounds of detention are based emenates from the right given to the detenue to make a representation and unless the

detenue is communicated the grounds with material and documents, he cannot be said to have been disclosed and supplied the grounds of

detention.

In AIR 1999 SC: 3051 (Sophia Gulam Mohd Bham Vs. State of Maharashtra and others), a detention case dealt with under Conservation of

Foreign Exchange and prevention of Smuggling Activities Act (52 of 1974), the learned Judge 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 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.....

In another case, Naseer Ahmad Sheikh Vs. Addl. Chief Secretary Home and Anr, Division Bench, 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 detenue so as to enable him to make an effective

representation against the order.

For the aforesaid reasons, the detenue cannot be considered to have been given an opportunity to make a meaningful and effective

representation against the detention, as guaranteed apart from the provisions of J&K 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 or

denied from detenue, the detenue cannot be said to be communicated the grounds with material.

In result, the detention order is adjudged as invalid and is accordingly quashed. Respondents/competent authority or officer having custody of

the corpus of the detenue shall set him at liberty and release him forthwith provided the detenue namely Nissar Ahmad Mir S/o Abdul Gani Mir

R/o Kralachack Tehsil Shopian, District Pulwama, is not required in any other substantive offence or case (including FIR (117/98) registered at

police station Rajpore). Communicate the order to concerned and supply copy free of cost to the petitioner.