Nazir Ahmad Dar Vs. State of J. and K. and ors. - Court Judgment

Excerpt:
- ordersyed bashir-ud-din, j.1. nazir ahmad dar is lodged in central jail kathua pursuant to order no. 33/dmp of 2002 dated 5-7-2002 detaining him under section 8 of the jammu and kashmir public safety act with a. view to prevent him from acting in a manner prejudicial to the security of the state. this order and the detention is under challenge in this petition.2. the learned counsel for petitioner urges following grounds in support of the petition and to question the legality of the detention. first that petitioner was not supplied material/documents referred in grounds of detention and relied by the detaining authority to draw satisfaction to detain the subject and that the detenu is prejudiced to make representation against the detention to the government. second, that the case suffers from non-application of mind. detenu is a petty medical shopkeeper and is not an expert to give any medical aid or treatment to any injured person and that every person can come to his medical shop to get the medicine and on that count subject could not have' been detained. getting shelter in his village 'dogripora' which comprises of 300 cholas does not necessarily mean that the petitioner gave shelter to the militants. order suffers from non-application of mind and is vague and too cryptic to show that the subjective satisfaction drawn by the detaining authority is legally in order. the learned counsel mr. m.a. beig, dy. a.g., has submitted that the detenu was supplied with the copy of the grounds and the same were explained to him. he is not prejudiced to make representation. he further contends that the detaining authority, district magistrate, has applied mind to the facts and circumstances of the case and passed the detention order on being satisfied that the activities of the subject are prejudicial to the security of the state. the satisfaction is not vitiated and the grounds are not vague.3. the detention order dated 5-7-2002, annexure-a reads as under :--'whereas, on the basis of grounds of detention placed before me, i am satisfied that with a view to prevent shri nazir ahmad dar s/o mohammad sultan dar r/o dogripora, tehsil pulwama, district pulwama from acting in any manner which is prejudicial to the security of the state, it is necessary so to do. 'ground 5(b) of the petition reads as under:-- 'b) that, the petitioner was not provided any material which would form the basis of the grounds of detention and even the copy of fir under which he has been booked was not supplied to the petitioner and this deprived him of the chance of making any effective representation before the authorities against his order of detention. this non-furnishing of material has badly effected and prejudiced his right to make his stand clear before the authorities regarding his innocence.' 4. in counter in reply to this para, ground 5(b), reads as under ;'as already submitted that the contents of detention order as well as grounds of detention were read over and explained to the detenu in kashmiri/urdu languages as well which he understands. moreover, there was no need to provide translated copy of grounds to the detenu because of his being illiterate. the fact is that he has understood the contents by executing a receipt which is on the file. it is denied that right of representation has been denied to the detenu to any manner. it is denied that any other right of the detenu has been denied.'as seen above, the respondents have not refuted or denied that the material, which formed the basis and core of detention, was not supplied to petitioner and that the non-furnishing of the material has prejudicially effected detenu's right to make representation. the detention file shows that the detaining authority has drawn subjective satisfaction for passing the impugned detention order on the basis of the report/dossier supplied to him by s.p. awantipora. even survey of the contents of the grounds is to show that the alleged anti-national prejudicial activities are based on some record and information fed to district magistrate, the detaining authority. in such circumstances, it cannot be said that the detenu is communicated the grounds as prescribed by section 13 of the j. & k. public safety act and enshrined in article 22(5) of the constitution of india.5. in naseer ahmad sheikh v. addl. chief secretary, home, 1999 srinagar lj 241, the court has 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. nowhere 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 representation against the order.'6. the detenu has right to be furnished the grounds of detention along with the documents relied upon in order to enable him to have an opportunity and avail the right to make an effective representation. for the purpose he is to be communicated the documents/statements and other materials referred to and relied on in the grounds. (see : mangalbhai moti ram patel v. state of maharashtra, air 1981 sc 510 : (1981 cri lj 331); smt. icchu devi choraria v. union of india, air 1980 sc 1983; sophia ghulam mohd. bham v. state of maharashtra, air 1999 sc 3051 : (1999 cri lj 4064)).7. the perusal of grounds of detention shows that after the rtb personnel came under attack from militants, the village dogripora was cordoned off on 30-4-2002. while searching for the militants, the detenu was picked up and on being questioned, the security forces came to know that he had provided medical facilities and shelter to the militants who were asked to leave the village immediately. only because the petitioner, who owned a petty medical shop, offered medical facilities and after militants left village comprising of 300 families, can it be said that the subject is harbouring and providing shelter to militants?. just on the basis of the one instance as above, detenu cannot be branded as a harbourer and the one who provides shelter and medical facilities to militants. as the detenu was owning medical shop in the village and every person could visit the shop to get medicine coupled with averment in the petition that petitioner is in no way connected to treat an injured, it cannot be said in absence of any rebuttal or denial by the other side that the detenu provided medical facilities to the militants. merely asking the militants, if it be so, to leave the village comprising of 300 families is not an act so as to name the detenu as one who harbours the militants. this cryptic and too exculpating an allegation cannot be a ground to pass the detention order. if one reads between the lines, the detention order, by a mere look, one notices the statement in the detention order that grounds of detention are placed before detaining authority, thereby indicating that these grounds were proposed by someone else and that detaining authority wrote word satisfaction in stereotype mechanical fashion, without focusing on the issue of drawing satisfaction. the subjective satisfaction of the detaining authority though an exclusive matter for such authority, suffers from vice of non-application of mind and lacks in subjective satisfaction. the sufficiency or insufficiency or adequacy or inadequacy of material before the detaining authority to come to its conclusion, is not and cannot be in question, yet in judicial review it cannot be said that the detaining authority has applied its mind to the facts and circumstances of the case and reached a conclusion informed of the basic facts.8. in the aforesaid view of the matter, the challenge to the petition succeeds. the detention order is found and held legally infirm and the detention vitiated. in conclusion, the detention order no. 33/dmp of 2002 dated 5-7-2002 is quashed. nazir ahmad dar s/o mohammad sultan dar r/o dogripora, tehsil pulwama, district pulwama, aged 25 years is directed to be set at liberty and released from preventive custody by the respondents/authority having physical corpus of this detenu, unless required in any other case, offence or matter.9. copy of the order be given to detenu free of cost. registrar, judicial to take follow up action. detention record returned to mr. m. a. wani, dy. a.g. in open court.

Judgment:
ORDER

Syed Bashir-Ud-Din, J.

1. Nazir Ahmad Dar is lodged in Central Jail Kathua pursuant to Order No. 33/DMP of 2002 dated 5-7-2002 detaining him under Section 8 of the Jammu and Kashmir Public Safety Act with a. view to prevent him from acting in a manner prejudicial to the security of the State. This order and the detention is under challenge in this petition.

2. The learned counsel for petitioner urges following grounds in support of the petition and to question the legality of the detention. First that petitioner was not supplied material/documents referred in grounds of detention and relied by the detaining authority to draw satisfaction to detain the subject and that the detenu is prejudiced to make representation against the detention to the Government. Second, that the case suffers from non-application of mind. Detenu is a petty Medical Shopkeeper and is not an expert to give any medical aid or treatment to any injured person and that every person can come to his medical shop to get the medicine and on that count subject could not have' been detained. Getting shelter in his village 'Dogripora' which comprises of 300 Cholas does not necessarily mean that the petitioner gave shelter to the militants. Order suffers from non-application of mind and is vague and too cryptic to show that the subjective satisfaction drawn by the detaining authority is legally in order. The learned counsel Mr. M.A. Beig, Dy. A.G., has submitted that the detenu was supplied with the copy of the grounds and the same were explained to him. He is not prejudiced to make representation. He further contends that the detaining authority, District Magistrate, has applied mind to the facts and circumstances of the case and passed the detention order on being satisfied that the activities of the subject are prejudicial to the security of the State. The satisfaction is not vitiated and the grounds are not vague.

3. The detention order dated 5-7-2002, Annexure-A reads as under :--

'Whereas, on the basis of grounds of detention placed before me, I am satisfied that with a view to prevent Shri Nazir Ahmad Dar s/o Mohammad Sultan Dar r/o Dogripora, Tehsil Pulwama, District Pulwama from acting in any manner which is prejudicial to the security of the State, it is necessary so to do. 'Ground 5(b) of the petition reads as under:-- 'b) That, the petitioner was not provided any material which would form the basis of the grounds of detention and even the copy of FIR under which he has been booked was not supplied to the petitioner and this deprived him of the chance of making any effective representation before the authorities against his order of detention. This non-furnishing of material has badly effected and prejudiced his right to make his stand clear before the authorities regarding his innocence.'

4. In counter in reply to this para, ground 5(b), reads as under ;

'As already submitted that the contents of detention order as well as grounds of detention were read over and explained to the detenu in Kashmiri/Urdu languages as well which he understands. Moreover, there was no need to provide translated copy of grounds to the detenu because of his being illiterate. The fact is that he has understood the contents by executing a receipt which is on the file. It is denied that right of representation has been denied to the detenu to any manner. It is denied that any other right of the detenu has been denied.'

As seen above, the respondents have not refuted or denied that the material, which formed the basis and core of detention, was not supplied to petitioner and that the non-furnishing of the material has prejudicially effected detenu's right to make representation. The detention file shows that the detaining authority has drawn subjective satisfaction for passing the impugned detention order on the basis of the report/dossier supplied to him by S.P. Awantipora. Even survey of the contents of the grounds is to show that the alleged anti-national prejudicial activities are based on some record and information fed to District Magistrate, the detaining authority. In such circumstances, it cannot be said that the detenu is communicated the grounds as prescribed by Section 13 of the J. & K. Public Safety Act and enshrined in Article 22(5) of the Constitution of India.

5. In Naseer Ahmad Sheikh v. Addl. Chief Secretary, Home, 1999 Srinagar LJ 241, the Court has 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. Nowhere 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 representation against the order.'

6. The detenu has right to be furnished the grounds of detention along with the documents relied upon in order to enable him to have an opportunity and avail the right to make an effective representation. For the purpose he is to be communicated the documents/statements and other materials referred to and relied on in the grounds. (See : Mangalbhai Moti Ram Patel v. State of Maharashtra, AIR 1981 SC 510 : (1981 Cri LJ 331); Smt. icchu Devi Choraria v. Union of India, AIR 1980 SC 1983; Sophia Ghulam Mohd. Bham v. State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064)).

7. The perusal of grounds of detention shows that after the RTB personnel came under attack from militants, the village Dogripora was Cordoned off on 30-4-2002. While searching for the militants, the detenu was picked up and on being questioned, the Security forces came to know that he had provided medical facilities and shelter to the militants who were asked to leave the village immediately. Only because the petitioner, who owned a petty Medical shop, offered medical facilities and after militants left village comprising of 300 families, can it be said that the subject is harbouring and providing shelter to militants?. Just on the basis of the one instance as above, detenu cannot be branded as a harbourer and the one who provides shelter and medical facilities to militants. As the detenu was owning Medical shop in the village and every person could visit the shop to get medicine coupled with averment in the petition that petitioner is in no way connected to treat an injured, it cannot be said in absence of any rebuttal or denial by the other side that the detenu provided Medical facilities to the militants. Merely asking the militants, if it be so, to leave the village comprising of 300 families is not an act so as to name the detenu as one who harbours the militants. This cryptic and too exculpating an allegation cannot be a ground to pass the detention order. If one reads between the lines, the detention order, by a mere look, one notices the statement in the detention order that grounds of detention are placed before detaining authority, thereby indicating that these grounds were proposed by someone else and that detaining authority wrote word satisfaction in stereotype mechanical fashion, without focusing on the issue of drawing satisfaction. The subjective satisfaction of the detaining authority though an exclusive matter for such authority, suffers from vice of non-application of mind and lacks in subjective satisfaction. The sufficiency or insufficiency or adequacy or inadequacy of material before the detaining authority to come to its conclusion, is not and cannot be in question, yet in judicial review it cannot be said that the detaining authority has applied its mind to the facts and circumstances of the case and reached a conclusion informed of the basic facts.

8. In the aforesaid view of the matter, the challenge to the petition succeeds. The detention order is found and held legally infirm and the detention vitiated. In conclusion, the detention order No. 33/DMP of 2002 dated 5-7-2002 is quashed. Nazir Ahmad Dar s/o Mohammad Sultan Dar r/o Dogripora, Tehsil Pulwama, District Pulwama, aged 25 years is directed to be set at liberty and released from preventive custody by the respondents/authority having physical Corpus of this detenu, unless required in any other case, offence or matter.

9. Copy of the order be given to detenu free of cost. Registrar, Judicial to take follow up action. Detention record returned to Mr. M. A. Wani, Dy. A.G. in open Court.