JUDGMENT
Syed Bashir-Ud-Din, J.
1. Subject Reyaz Ahmad Bhat is detained by District Magistrate Anantnag under Section 8 of the J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State under his Order F-197/DMA/PSA/DET/2001/253-580, dated 11.9.2001. This order and the consequent detention is under challenge in this petition. The respondents through the detaining authority District Magistrate , Anantnag has filed counter. The detention file is also available on record file.
2. The counsel for the petitioner submits that the detention order as also the grounds have not been supplied to the detenue. No material/documents, subject of detention is supplied to detenue. Though, the detention is based on report and documents supplied to detaining authority by the District Police, yet the documents from which the detaining authority has drawn satisfaction are not supplied to detenue and thereby the detention order as also the grounds are not at all communicated to the detenue. The detention is vitiated.
3. In reply, the Ld. Addl. A.G. Submits that the detention order with grounds has been supplied to detenue. The detention is based only on the grounds. Therefore, the question of supply of any documents to the detenue does not arise and the detenue is not prejudiced on this count.
4. On personal of the detention record in the context of pleadings of the parties, it is seen that the order of detention is supplied to detenue by SI. Bashir Ahmad 4505/NGO P/S Kulgam, when the detenue was taken in custody and hand over at District Jail Kathua for lodgment. The receipt is even countersigned by Asst. Superintendent, District Jail Kathua, and also by the detenue. It is also seen that the grounds of detention have been also served on him on 18.9.2001 by Superintendent, District Jail, Kathua, on the receipt signature of detenue is obtained. In such circumstances, it cannot be said that the detenue is not supplied the detention order with the grounds.
However, whether any documents/material, the basis of grounds and detention too is supplied to detenue needs to be examined. There is a specific allegation that no material basis of the grounds and the detention order is supplied to detenue. The detenue is prejudiced to make an effective representation against the detention order to the Government.
In answer in counter, under para 2 under the head “reply on merits” respondents have pleaded “that the detenue has been provided record in the shape of grounds of detention which alone form the basis of his detention.” However, this averment in the counter does not appear to disclose the whole truth. The very nature of allegations, details with reference to dates, incidents, registration and investigation of criminal case, upper and under ground alleged prejudicial activities attributed to the subject and militancy record tracked to the subject in the grounds, do reveal that the grounds are based on some report/documents made available to the detaining authority who, has drawn the satisfaction in the shape of grounds to record that the detention of the subject is necessary with a view to prevent him from acting in any manner prejudicial to the security of the State. It is also found that on the detention file is a report/dossier of Superintendent of Police Kulgam giving incriminating facts and allegations referred in the grounds. Obviously, this report and other documents which may have been available with detaining authority while drawing his satisfaction for detention of the subject, have not been at all supplied to the detenue.
5. In the facts and circumstances, petitioner cannot be said to have been communicated grounds of detention within the meaning of Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, and thereby subject is denied opportunity to make representation against the detention, as guaranteed by paramount laws and also provided for by J&K Public Safety Act falling within domain of domestic law.
6. In Sophia Gulam Mohd, Bham v. State of Maharashtra and Ors. (AIR 1999 SC 3051), the following observation of the Apex Court through made in the context of COFEPOSA Act of 1974, apply with full force to this case :-“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 ground are based flows from the right given to the detenue to make a representation against the order of detention. 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.”
7. In Naseer Ahmad Sheikh v. Additional Chief Secretary Home and Anr., (1999 SLJ 241) Division Bench of this court 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. No where is it pleaded, much less 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.”
In the aforesaid view of the matter the detention is vitiated. The detention order and consequent detention of Reyaz Ahmad Bhat S/o Mohd. Sultan Bhat R/o Kilam, Tehsil Kulgam, District Budgam, is quashed and respondents/competent authority having corpus of the detenue shall release him from custody and set him at liberty forthwith provided not required in any case, offence or matter.
Copy of this order shall be given to petitioner free of cost. Communicate this order to concerned authorities. Detention file returned to Mr. M.M. Khan, AAG, in open court.