JUDGMENT
Syed Bashir-Ud-Din, J.
1. Subject Mumtaz Ahmad Zergar is detained by District Magistrate, Srinagar, Respondent No. 2 under Section 8 of the J and K Public Safety Act 1978, in order to prevent him from indulging in any mariner prejudicial to the security of the State under his Order No. DMS/PSA/43 dated 17-7-2002. This order and consequent detention, is under challenge in this petition.
2. Though number of grounds have been taken to assail the detention, petitioner’s counsel submits that the following grounds alone are taken up to question the legality of the detention order.
3. First the detenu has not been supplied the material, report and other documents referred in the grounds of detention, when the detaining authority has drawn satisfaction for the detention in question from such on record material/report. Second, the counsel contends, that the detenu has not been informed of his right to make representation while being handed over copy of the detention order. Third, the detention is based on vague and omnibus grounds having happened in distant past, with no proximate link with the detention in question. The detention orders suffers from non application of mind.
4. The Addl. Advocate General, Mr. M.M. Khan, has in reply contested the submissions of the petitioner. He submits that the grounds alone have been relied upon for purpose of detention. It is only the grounds of detention from which the detaining authority has drawn satisfaction. Mention of FIR in the grounds, is only by way of reference. The detenu is not prejudiced on this count. The counsel also canvasses that the detenu has been served not only with order of detention, but also the grounds of detention have been served on him. He has been also informed of right to make representation to the Government. For the purpose he has executed the receipts which are on record of the detention file. Detenu cannot be said to have been denied the right to make representation. Lastly, the counsel also submits that reference to events bracing the period 94 to 2003 in the grounds” is in the context to how that the detenu has been associated with and indulging in activities prejudicial to the security of the State. As late as in May, 2002, detenu has been associated with the activities refered in the grounds. The detention and the activities in recent past have a nexus to show that the subject, if let off on bail, is likely to indulge in activities which are threat to the security of the State.
5. Detenu Mumtaz Ahmad Zarger, detained under detention order dated 17-7-2002 (Annexure B) has been taken in preventive custody on 23-7-2002. Para 8 of the petition reads as under :–
“8. That the copy of FIR No. 93/2000 and the material on which the case is based not been furnished to the detenu. The copy of the police report has also not been provided to him. The detenion is therefore, illegal.”
This para has not been specifically commented upon and denied. It is stated that the detenu has been communicated the grounds of detention and nothing further. The impugned detention order reads as under :–
“Whereas I, Abdul Hamid, IAS District Magistrate Srinagar, am satisfied on the basis of records received From SSP Srinagar with a view……….”
Obviously, even the order of detention also states that the detaining authority, District Magistrate has drawn satisfaction on the basis of records which he has received from SSP Srinagar. The records have not been spelled out. However, the detention file placed before Court also shows that dossier/ report of Sr. SSP District Srinagar dated 9-7-2002 has been forwarded to the detaining authority, which is part of the record, the basis of satisfaction of the District Magistrate. Even on record ground of detention, a copy whereof is supplied to the detenu, opens up with the words, “perusal of record provided by Sr. Superintendent of Police, Srinagar reveals that you are an active staunh member of Hizbul Mujahidden out fit.” The reading of the grounds further shows that the activities are attributed to detenu right from 1994 to 1996 and in the year 2002. All these activities are based on some record which also fortifies the statement of the detaining authority that the satisfaction has been drawn on the basis of record/report/dossier/material supplied to the detaining authority.
6. All the above facts and circumstances sufficiently reveal that the satisfaction drawn by the detaining authority for the detention order and the consequent detention of the subject, is based on the material/ documents/records/report/dossier supplied to the detaining authority by the police authorities, scenario manifest on record. However this material/report/dossier/ record has not been supplied to detenu. He has been given a mere copy of the grounds without any supporting material/1 record’ referred to in the order and grounds of detention by the detaining authority. In counter affidavit, it is no where stated that the subject was supplied any such material/report/dossier/record.
7. Contextually, in Naser Ahmad Sheikh v. Additional Chief Secretary Home (1999 SLJ 241, a Division Bench of this Court, to which I was a party, 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 detenu so as to enable him to make an effective representative against the order.”
8. In Sophia Gulam Mohd Bham v.State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064), the Apex Court in the context of “communication of grounds” held :–
“.,..,..The right to be communicated the grounds of detention flow 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 detenu 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 detenu 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. …….”
9. Accordingly, the detenu cannot be said to have been supplied the grounds/material on which the grounds are based, Failure to disclose and communicate the grounds is but to prejudice the detenu to make an effective and meaningful representation against the order.
10. In view of the above, in my opinion, detention in this case is vitiated and thereby the necessity to delve into the other two grounds taken to challenge the detention, is obviated. The detention order No. DMS/ PSA/43 dated 17-7-2002 is quashed. Respondents/authority/officer/person having physical corpus of the detenu Mumtaz Ahmad Zargar S/o Ahter Hussain R/o Malikpora Zainakadal, Srinagar Kashmir, shall set him at liberty forthwith, provided the detenu is not required in any case, offence or matter.
11. Copy of this order be given to detenu free of cost. Communicate this order to the concerned. Record has been Returned to Mr. M.M. Khan, A.A.G., in open Court.