Feroz Ahmad Rangrez vs State of Jammu and Kashmir

By this petition the detention of one Feroz Ahmad Rangrez alias Sanjay S/O Mohd. Ashraf Rangraz, R/O Hilalabad Qamarwari, Srinagar is

being challenged by his father Mohd. Ashraf.

Petition stands admitted to hearing and in response to the notices, respondents appeared through Mr. Kotwal and filed the counter affidavit

which is on the file. The petition came up for hearing and perusal.

Heard learned counsel for the parties and perused the records.

Mr. Hussain vehemently argued that the detenue has not been provided with the report of the sponsoring officer, on the basis of which detention

order and grounds of detention have been framed, which was a necessary document, to enable him to make an effective representation against his

detention as ensured to him under the provisions of SubArticle (5) of Article 22 of the Constitution of India as applicable to the State of Jammu

and Kashmir and also the statutory guarantees enshrined to him underthe statute of land. These arguments have specifically been projected in the

petition while throwing challange to the detention order purported to have been passed by District Magistrate, Srinagar vide No:

PSA/DMS/203/92 dated 26111992.

Mr. Tasaduq while projecting his arguments in the above context, also referred to a judgment passed by this bench in Habeas Corpus petition

No: 770of 1991 titled Mohd. Sidiq Beig Versus State of Jammu and Kashmir and others. In the said judgment reliance has been made to 1990

Cr. Law Journal 2093, where in their lordships have relied on a judgment of a Division Bench of Bombay High Court reported as Cr. Petition No:

794 of 1988 where in it has been held as under

In the grounds of detention, it has not been stated by the detaining authority that in the light of what has transpired the detenue was likely to indulge

in future in similar activities. The inference on the basis of which the detaining authority passed the order of detention is a ground of detention. The

grounds of detention do not merely mean the facts but the inference drawn from the facts and the documents. So considered in the present case, it

is seen that the detenue has not been communicated a very important inference drawn by the detaining authority, namely that the detenue on the

basis of his activities, was likely to indulge in similar activities, in future.......

If the detaining authority drew an inference from the past conduct of the detenue in the present case, that inference has not been incorporated in

paragraph 11 of the grounds of detention as it ought to have been done because the inference itself is a ground on the basis of which the order of

detention is based

In the above quoted judgment, this court has held that the detenue has not been provided with the police dossier or memo for sponsoring

detention of the detenue and while placing reliance of 1990 Cr. Law Journal 2114, A division Bench Judgment of the Lucknow Bench of the

Allahabad High Court has Had down that the detaining authority is bound to provide copy of the dossier/documents on which reliance has been

made while coming to the conclusion of subjective satisfaction for passing detention order. Number of judgments have been passed by this bench

of the court, wherein it has time and again been reiterated that the documents on which reliance/reference of which has been made by the detaining

authority to have subjective satisfaction for detaining a person is must be provided to the detenue so that he is in a position to make effective

representation as is enshrined to him under law. Thus non furnishing of these documents is sufficient to quash the detention order as argued by Mr.

Tasaduq.

7, Mr. Kotwal while rebutting the arguments of Mr. Tassaduq has drawn my attention to another judgement passed by this court in Habeas

Corpus Petition No: 533 of 1991 titled Nazir Ahmad Hajam versus State wherein his lordship has observed that the detenue is to be provided

with the documents on which reliance has been made by the detaining authority, but mere reference of documents are not to be provided. So there

is no difference of opinion on this count and the legal position is that on whatever material, the detaining authority has made reliance in coming to

subjective satisfaction while passing the detention order, those are to be provided to the detenue, unless privilege is pleaded thereto for the

interests of public Policy and even that privilege is to be justified before the Advisory Board as to why the detaining authority has not disclosed

specific facts and the Advisory Board's finding on that count is conclusive and binding. So there isno dispute on this count that in case facts are

being denied and those are not been disclosed on the grounds of public policy and privilege is claimed there to, the detaining authority has every

right to retain those facts, but regarding other material on which reliance has been made by the detaining authority, those are to be provided to the

detenue.

Merely asserting or giving a casual reference that only reference was made to the documents and no reliance has been placed on them will not

be accepted by this court unless it is specifically pleaded by the detaining authority in the counter affidavit duly sworn by the detaining authority that

he has not made any reliance on the documents/ initiating report/dossier, which was provided to him and on which reliance has not been made, not

to speak of any reference and in absence of any specific plea to that effect, the court is not going to accept the plea that no reliance was made on

the documents referred to in the grounds of detention.

Now as regards another question which was posed to Mr. Kotwal by the court regarding delay in executing of the detention order, when it is an

admitted fact that the detenue was arrested way back on 22.10.1991 and was in fact in the custody of the respondents, when the order of

detention came to be passed, i.e. 26.11.1992 and seems to have been executed on the detenue on 9.1.1993 what deferred the execution of the

detention order on the detenue for such a period is not explained. In reply,Mr. Kotwal submitted that during present day circumstances, the

Government is not in a position to execute the order of detention well in time, admitting the fact that the detenue was not lodged in any Jail outside

the state, but admittedly he was lodged in one of the Jails in District Kathua and had the respondents desired, they would have given wireless

message for getting the order of detention executed. This court has in number of writ petitions held that there should be no delay in execution of

detention order and unexplained delay is fatal to the very detention order and this case cannot be an exception because if after passing the

detention order, it is allowed to remain without execution or its execution is deferred for pretty long time, then the very purpose of making

detention of a citizen for a maximum period of two years will get frustrated, which is not the mandate of Law and constitution and it is on this count

that the courts have shown concern and its anxiety that the order of detention should be served upon the detenue at the earliest.

Mr. Kothwal has referred to AIR 1986 SC regarding providing of intelligence reports and copy of history sheets. The judgment of the Apex

Courts are nodoubt binding and without and specific reference to history sheet and intelligence reports these were not the documents which were

to be provided to the detenue. But a duty is enjoined upon the detaining authority to provide all he documents on which reference has been made

and reliance has been placed by the detaining authority. While coming to subjective satisfaction in passing the detention order. It is not in the air

that the detaining authority comes to subjective satisfaction against the detenue and passed an order and it is on the same basis, particularly

initiating officer's report which made basis for District 7 Magistrate to have a subjective satisfaction to declare whether any person is hazardous to

the security of the State/Public order.

For the foregoing reasons, the petition is allowed and while quashing the order of detention bearing No: PSA/DMS/203/ 92 dated 26.11.1992

passed by District Magistrate, Srinagar. It is directed that the detenue be released forthwith wherever he is lodged, unless otherwise required in

any substantive offence.

The petition is disposed of accordingly.