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2001 Supreme(J&K) 111
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Syed Bashir-ud-Din, J.
Feroz Ahmed Mehand - Appellant
Versus
State - Respondent
HCP No. 303/2000
Decided On : 22 May, 2001
Advocate For Appellant: S.R. Khawar
Advocate For Respondent: A.M. Watali
The central legal point established in the judgment is the importance of communicating the grounds of detention and supplying all material to the detenue, as failure to do so would render the detention illegal.
Headnote:
Detention - J&K Public Safety Act, 1978 - 8 - Summary of Acts and Sections: J&K Public Safety Act, 1978, Section 8 - The court found that the detenue was not served the grounds or material on which the grounds were based, which is a procedural safeguard under Article 22(5) of the Constitution. The court referred to various cases to emphasize the importance of communicating the grounds of detention and supplying all material to the detenue, as failure to do so would render the detention illegal. The impugned order of detention was quashed and the detenue was directed to be released from custody.
Fact of the Case:
The detention order under the J&K Public Safety Act, 1978 was challenged on the grounds that the detenue was not served the order of detention and the grounds therefor, and was denied the opportunity to make a representation against the detention order.
Finding of the Court:
The court found that the detenue was not served the grounds or material on which the grounds were based, which rendered the detention illegal.
Issues: The main issue was whether the detenue was afforded the procedural safeguards of being served the grounds of detention and provided with the material on which the grounds were based.
Ratio Decidendi: The court emphasized the importance of communicating the grounds of detention and supplying all material to the detenue, as failure to do so would render the detention illegal.
Final Decision: The impugned order of detention was quashed and the detenue was directed to be released from custody.
Per Syed Bashir-ud-din J
1. The detention order No. 37/DMP/ 2000 dated: 20.07.2000 passed by District Magistrate, Pulwama (Respondent No. 2) as approved by the State Government (Respondent No. 1) detaining Feroz Ahmad Mehand u/s 8 of J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State is under challenge in this petition.
2. Though number of grounds are taken to assail detention but the only grounds of challenge pressed by petitioners counsel as referred in para 3 of the petition are that the detenue has not been served the order of detention and grounds therefor. The grounds are not explained to him in the language which he understood. He is not supplied material/documents referred in grounds. Detenue is not informed of his right to make representation to govt. against detention order. He is denied opportunity to make the representation.
3. Respondents have filed counter through the detaining authority (respondent No. 2) and also produced detention record which was retained on the file. Respondents contended that the detention order at the time of execution on 25.07.2000 was read over and explained to detenue in the language which he understood and grounds therefor have been also served and explained to detenue. The only material on which detention is based are grounds.
4. Heard.
5. On examination of record and in the light of contention advanced by the parties, it is seen that the detenue has been served the order of detention but not the grounds or material on which the grounds are based. Though detention record produced reveals that the detenue was supplied copy of the order of detention at the time of execution of the order through a selection grade constable of P/s Pulwama, the acknowledgment and endorsement speaks of execution of the order qua handing over of the detenu to Central Jail, Srinagar for preventive custody and handing over of the copy of the order to detenue. Intoken of the receipt thereof thumb impression of the detenue has been taken. It shows neither copy of the grounds was served nor any other material was supplied to detenue. It is also seen that the order of detention speaks that it has been passed "on the bases of grounds of detention placed before him" (meaning thereby District Magistrate, Pulwama). In the grounds besides the introductory remarks and background facts, statement of association of detenue with Hizbul-Mujahideen outfit, motivation of youths to join this militant outfit, detenues arrest in a regular criminal case, recovery of arms and ammunition at his instance, association of some other alleged militant namely Khurshid Ahmed Bhat are based on some information, report etc. fed to the detaining authority. In fact this aspect gets cleared when one notices on record of this file, dossier/report of Superintendent of police District, Pulwama. The material admittedly has not been supplied to the detenu. There is nothing on record to show that the grounds were at all supplied to him and in case so supplied if same was explained to him. Evasive reply and bald assertion of supply of grounds and explaining same to detenu, would, in the facts and circumstances of the case, hardly displace the onus on respondents as requirement of law. The petitioner/detenus allegations that the grounds and the material has not been supplied to him and that the grounds have not been explained to the detenu is not disproved by respondents. It is interesting to note that for supply of grounds it is stated in the counter that an endorsement bearing thumb impression of detenu has been obtained and placed on record. But detention record/file shows that the endorsement with thumb impression of detenu on record is on the endorsement that detention order is executed and detenu is handed over to the Jail authorities, besides that the contents of warrant are explained to the detenue. It no where speaks off explanation of grounds to detenu. The contentio
