Shafiq Ahmad Beigh vs State of Jammu & Kashmir and Others

R.C. Gandhi, J.—Petitioner Khurshid Ahmad Beigh, brother of Shafiq Ahmad Beigh seeks to quash the detention order No. DMS/PSA/22

dated: 14.5.2002 passed by District Magistrate, Srinagar in exercise of the powers u/s 8 of the J&K Public Safety Act, 1978 (hereinafter to be

referred as ""the Act"") directing preventive detention of the detenu which has been subsequently confirmed by theGovernment for a period of 24

months.

Petitioner has challenged the detention order on, various grounds including that the respondents have not provided opportunity to the detenu to

appear and defend himself before the Advisory Board. The Board has not recommended the detention of the detenu. Respondents have not

informed the detenu to make a representation in terms of Section 13 of the Act. The record on the basis, of which the District Magistrate has

arrived his subjective satisfaction, such as, documents supplied by the concerned SSP, reference of which has been made in the detention order,

has not been supplied to the detenu which amounts to breach of mandate of Section 13 of the Act for making effective representation. The detenu

was also in the custody of the respondents being arrested, on 18.3.2002 in FIR No. 49/2002 registered in Police Station Raj Bagh and despite

that the detaining authority has not disclosed the compelling reasons for his preventive detention.

Respondents have filed the counter affidavit controverting the averments and stating that the detention order has been approved by the

competent authority and also confirmed in terms of Section 17 of the Act. Detention order stood also approved by the Government vide order

dated: 22.5.2002 in complaince to Section 8(4) of the Act.

Heard learned counsel for the parties and perused the record

It is noticed that the respondents have not controverted the averments of the petition parawise as required by the law of pleadings. The petition

contains 3 paras and 11 sub-paras. Respondents have replied only 4 paras in their counter affidavit that too evasively.

It is seen from the record that the detenu was heard by the Advisory Board constituted u/s 14 of the Act and the Board has opined the

continued detention of the detenu. Therefore, there is no substance in the plea of the learned counsel for the petitioner that the Board has not

provided an oportunity to file detenu of being heard.

The respondents have also explained the grounds of detention as required by law to the detenu in complaince to Section 13 of the Act. There is

no substance in this plea also.

It is urged by the learned counsel for the petitioner that the relevant record as required under law to be supplied and furnished to the detenu has

not been furnished. He has laid emphasis on the record which has been made available by the SSP, Srinagar to the Detaining Authority on the

basis of which the Detaining Authority has arrived the subjective satisfaction for directing preventive detention of the detenu. Perusal of the

detention order reveals that the Detaining Authority has recorded in the detention order satisfied on the basis of the record received from S.S.P

Srinagar There is no doubt that the detaining authority has to arrive at the satisfaction on the basis of the record supplied by the concerned agencies

The subjective satisfaction detaining authority cannot be questioned. However once it is recorded that the satisfaction has been arrived on the

material supplied by the SSP Srinagar that relevant record on the basis of which satisfaction is recorded, is required to be furnished to the detenu

either in grounds of detention or by supplying copy of the said record. It was open for the respondents to explain this to the Court as to in what

form or method relevant record on the basis of which subjective has been arrived, has been furnished to the detenu which is mandatory

requirement of Section 13 of the Act enabling the detenu to make representation to the Government,. The respondents in their counter have not

stated that this record has been furnished to the detenu in the form of grounds of detention. This issue was also raised at bar in HCP No. 44/2002

where the factual proposition was the same where the District Magistrate recorded the satisfaction on the basis of dossiers and other connected

documents produced by the SSP Srinagar vide his communication dated 10.02.2002 The court while appreciating this has held as under:

................ It is not denied by the respondent that these documents have not been supplied. In the Counter affidavit also it is stated that grounds of

detention have been supplied. This dispute of supply of the other connecting documents has arisen only from the first Para of the Detention Order

which reveals that the Detaining Authority has considered other connecting documents also. This has not been reflected by the respondent in the

counter affidavit. The documents considered by the detaining authority for directing preventive detention were to be supplied to the detenu and non

supply of these documents prejudiced his right to make effective representation to the Government in terms of the mandate of Section 13 of the

Act"".

The respondents, have not made out before the Court that the material on the basis of which satisfaction is arrived particularly the material

supplied by the SSP Srinagar, Which is, not contained in the grounds, of detention stood supplied to the detenu to meet the requirement of law.

Under such circumstances the detention order, for this reason alone cannot be maintained and is accordingly quashed. The respondents are

directed to release the detenu forthwith if he is not required in any other case.