Abdul Majid Makroo vs State of J&K and others

Detenue Abdul Majid Makroo son of Mohammad Ramzan Makroo resident of Padgampora Tehsil Tral District Pulwama seeks to quash

detention order No. Div. Commr/RA/ PITNOB/3 of 2003 dated: 26.8.2003 passed by Divisional Commissioner, Kashmir, respondent No.2,

directing preventive detention of detenue for a period of 6 months and subsequently enhanced to 24 months by the Government in exercise of the

powers under section 9(f) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter called the ""the

Act"").

The detention order has been challanged on the ground that the detenue has not been produced before the Advisory Board and statutory right

of hearing has been denied to the detenue. Detenue has also not been supplied the material on the basis of which satisfaction has been drawn for

directing preventive detention.

Respondent No.3 has filed the counter affidavit stating therein that the detenue was carrying 14 bags of Poppy Straw in the Truck bearing

registration No. 6747 JK02 and during investigation it was found that he is indulging in smuggling of Narcotics and is active in the whole area. The

activities of the detenue were prejudicial to the maintenance of law and order. The activities of the detenue have become threat for the society in

general which necessitated preventive detention of the detenue. The material relied upon has been communicated to the detenue in the form of

grounds of detention Respondent No.2 detaining authority i.e. Divisional Commissioner Kashmir, despite granting opportunity has not bothered to

file the reply.

Heard learned counsel for the parties and perused the record.

The detention order has been passed by the Divisional Commissioner, Srinagar. He has not filed the counter affidavit controverting the

averments of the petition. The averments of the petition that grounds of detention have not been served and the material relied upon also not

supplied to the detenue, has not been controverted by the detaining authority. The detaining authority has derived satisfaction for directing

preventive detention on the basis of the record received from Home Department, J&K Government, Srinagar vide No. HomePBBM/20/03 dated

4.8.2003 which is evident from first Para of the detention order which reads as:

Whereas 1 Parvez Dewan, Divisional Commissioner, Kashmir am satisfied on the basis of record received from Home Department, J&K

Government, Srinagar vide No. Home(PBV) M/20/03 dated 4.8.2003 with a view to prevent Shri Abdul Majid Makroo alias Maja son of

Mohammad Ramzan Makroo resident of Fadgampora Tehsil Tral District Pulwama from engaging in Trafficking of Narcotic and Psychotropic

Substances.

The grounds of detention have been served upon the detenue as pleaded by the respondent No.3. The grounds of detention do not find any

mention with regard to the material received by the detaining authority vide letter dated: 4.8.2003. The satisfaction has been arrived at by the

detaining authority on the basis of the particular material received from the Home Department. It has not been communicated or furnished to the

detenue which has the effect of depriving the detenue to make effective representation to the Government against his detention order, it amounts to

violation of the safeguard provided to the detenue under Article 22 of Constitution of India.

The detaining authority can direct preventive detention if the activities of the detenue are found prejudicial to the security of the State and it can

be done only in the mode and manner as provided by law. After the passing of the detention order it is obligatory in law upon the detaining

authority to communicate the grounds of detention and the relevant material on the basis of which the detaining authority has drawn the satisfaction

for directing preventive detention. The detaining authority has drawn the satisfaction on the basis of the record received from the Home

Department and this record has not been furnished to the detenue. Non supply of this material has not only deprived the detenue of opportunity to

make effective representation against the detention order but also infringed the safeguard available to the detenue, provided by Article 22 of the

Constitution. Till the relevant material which constitutes the grounds of detention and the basis for drawing subjective satisfaction by the detaining

authority is made available to the detenue, it cannot be said that the detenue has been communicated the relevant material. The respondents have

not made out that the relevant material as noticed in the detention order on the basis of which satisfaction has been arrived at by the detaining

authority has been communicated to the detenue. Under such circumstances the detention order cannot be maintained and is quashed.

For the foregoing reasons, the Habeas Corpus petition is allowed and the impugned detention order No. Div. Commr/RA/PITNOB/3 of 2003

dated 26.8.2003 is quashed. The respondents are directed to release the detenue from the preventive detention if not involved in any other case.