JUDGMENT
Syed Bashir-Ud-Din, J.
1. Subject Nazir Ahmad Bhat is detained U/s 8 of J&K Public Safety Act, 1978 by District Magistrate Srinagar (respondent No. 2) vide his order No. DMS/PSA/39 dated 31.7.2003. Pursuant to this order the detenu was taken in preventive custody on 4.8.03. This order and the detention is impugned on number of grounds. However Ld. Counsel has taken following two grounds to question the order of detention:-
First that the detenu was initially arrested on 17.4.03 in FIR No. 64/03 and was given bail by the competent court on 11.6.03. He was again shown detained in FIR No. 31/01. He was also given bail in this case on 24.7.03. Detenu was not released from detention and instead was detained under P.S. Act under the impugned order without application of mind and any compelling reason on record and
Second that the detenu was not supplied material and record relied on and referred in the order and grounds by the detaining authority thereby he is prejudiced to make representation to the Govt. against the detention order.
2. Ld. Counsel for the State Mr. T. Khawaja submits that notwithstanding that the detenu was involved in punitive detention in the above referred two FIRs, he was detained for valid reasons under P.S. Act and whatever the facts available with the detaining authority same have been stated in the grounds thereby the detenu is not prejudiced,
3. Record is perused. Annexures P-l AND P-2 show that the detenu is bailed out in FIR No. 64/04 registered at P/s Safakadal Sgr. and FIR No. 31/01 again registered at P/s Safakadal, Srinagar. The grounds of detention speaks of recovery of arms and ammunition from detenu in respect of which FIR No. 64/03 U/s 7/25 I.A.A was registered at P/s Safakadal, Srinagar apart from the reference to some circumstances pertaining to the period earlier to April 1990. The order concludes that:-
“It is clear that your activities are highly prejudicial to the Security of the State and your remaining at large will be a threat to the Security of the State. Under such compening circumstances, it has become imperative to detain you under the provisions of Public safety Act, 1978 for which orders are being issued separately.” 4. It is obvious that no reference is made to the bail given to the accused in the above FIR. The detaining authority appears not aware about the bail. The compelling reasons for ordering the detention are observed not present in the case. Contextually the following observation of Apex Court in Rameshwar Shaw’s case (1964) 4 SCR 921, is apt to be noted:-
“The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.”
In para 9 of the petition it is averred:-
“That the dtenu has neither been served with the order of detention nor the material referred to in the grounds of detention. Non supply of the material referred to in the grounds of detention alongwith the detention order to the detenu which prevented the detenu to make an effective representation against his detention. On this count also the detention of the detenu renders illegal and is liable to be quashed.”
In para 8 of the counter it is averred ;-
“Para (8 & 9) are denied. It is submitted that detention order along with grounds of detention were properly served and explained to the detenu enabling him to make a representation. Detenu was also informed about his right to make a representation. Contentions to the contrary are against the record and hence denied. It is submitted that material details of the activities carried on by the detenu, which persuaded the detaining authority to issue the impugned order, have been fully narrated in the grounds of detention itself that have been properly served on the detenu. It is submitted that since the grounds of detention contained all the material details, no prejudice has been caused to the detenu in as much as the details given in the grounds of detention were sufficient to enable the detenu to make a representation against the order of detention if he so desired.”
The order of detention in the beginning reads as:-
“Whereas, I District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar with a view to prevent….”
5. A combined reading of the petition and counter averments and above statement in the detention order reveals that the order of detention is based on and satisfaction derived from record which the detaining authority has received from SSP Srinagar. What this record all about or what it contains is not spelt out. Even so impugned order, grounds therefore and consequent detention is based on material/record referred to as record supplied by SSP Srinagar. Ld. Counsel for the State Mr. T. Khawaja concedes that the record whatever it may be is not supplied to the detenu. Obviously in absence of the record which may be in the form of material/evidence/documents the basis of grounds and the detention the detenu cannot be said to have been communicated the basic facts and information. Same is with-held from him, to his legal prejudice qua sight of making representation to Govt. against the detention in question.
6. In Sophia Ghulam Mohd. Bhan v. State of Maharashtra and Ors.(AIR 1999 SC 3051), the Apex Court in the context of “communication of
grounds” held:-
“……… 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 grounds 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 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..”
7. In Naseer Ahmad Sheikh v. Addl. Chief Secretary Home and Anr.; Division Bench of this Court (1999 SLJ: 241) observed:-
“…. The grounds of detntion 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. Nowhere is it pleaded, muchless 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 far as to enable him to make an effective representation against the order.”
In Gh. Mohd. Mir v. State of J&K (HCP No. 93/99) decided on 30.12.1999, it is observed:-
“In the circumstances, the detenu cannot be said to have been provided an opportunity and the means to make meaningful and effective representation against the detention as guaranteed apart from provisions of Public safety Act, by Article 22 of the Constitution. So long the material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority is withheld from or denied to the detenu, the detenu cannot be said to be communicated the grounds with material. If so detenue is denied opportunity to make representation.”
8. In result for the aforesaid reasons the detention is vitiated and consequently the detention is quashed. Detenu Nazir Ahmad Bhat S/o Khyazir Mohd. Bhat R/o Rahilone Nawakadal, Srinagar (aged__). Be released/set free forthwith provided not required in any case, offence or matter.
Copy of this order may be given to detenu free of costs. Registrar Judicial to take follow up action. Disposed of.