Shabir Ahmad Khan vs State and Others

Sunil Hali, J.—Shabir Ahmad Khan has filed this petition through his father Bashir Ahmad Khan, seeking quashing of his detention Order

No. 621/DMB/PSA/09 dated 24.03.2009 issued by District Magistrate Baramulla u/s 8 of the Jammu and Kashmir Public Safety Act, 1978, on

the ground that detention has been ordered by the detaining authority without there being any record and without application of mind. It is further

contended in the petition that detenu was not provided with the material which had been relied upon by the District magistrate while contemplating

his detention, so as to enable him to make an effective representation against his detention, rendering his detention illegal.

Justifying the petitioner's detention, learned State counsel urged that all what was required to be supplied under law had been supplied to the

detenu and no prejudice has been caused to him in exercising his right of making representation against his detention.

I have considered the submissions of learned Counsel for the parties and perused the detention record produced by learned State counsel.

Perusal of grounds of detention reveals that petitioner's detention has been ordered on the basis of his activities of indulging in Forest Smuggling,

pertaining to the years 2003-2009. There is nothing on records to show that material relied upon by the detaining authority, i.e. Dossier and other

connected documents, were supplied to the detenue. In terms of the detention record, what was supplied to the detenue on 07.04.2009, as is

evident from the receipt obtained from him in this regard, was the detention order issued on 24.03.2009 consisting of one leaf only and nothing

beyond that.

Non-supply of the material relied upon by the detaining authority, to the detenu thus deprives his right to make effective representation against

his detention. The omission of the respondents to supply the detenue the material that had weighed with the detaining authority while directing his

detention, renders the detention unsustainable as effective representation contemplated by Article 22(5) of the Constitution of India may not be

conceived unless the material that weighed with the Detaining Authority, had been supplied to the detenue. In this view of the matter, the detention

order cannot be sustained. I am supported in taking this view by a judgment of Supreme Court of India in Thahira Haris etc. Vs. Government of

Karnataka and Others, , where their lordships have held as under:

Our Constitution provides adequate safeguards under Clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the

order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials

relied upon in the grounds of detention without any delay. The predominant object of communicating the ground of detention is to enable the

detenu at the earliest opportunity to make effective and meaningful representation against his detention.

Accordingly, allowing this petition and quashing Order No. 621/DMB/PSA/09 dated 24.03.2009 issued by District Magistrate Baramulla,

detenu Shabir Ahmad Khan S/O basher Ahmad Khan R/O Zandpal tehsil Tangmarg District Baramulla is directed to be released from custody

forthwith, if not required in any other case.

Detention record be returned to the learned State counsel.