Hamza Dar vs The State and Another

S.M. Rizvi, J.—By medium of this writ of hubcas corpus the petitioner challenges the detention order No. 585/ST dated 4-1-1988 passed

by the District Magistrate, Anantnag u/s 8 of the Public Safety Act (hereinafter referred to as Act) detaining Hamza Dar s/o Habibullah Dar r/o

Takiabal, Brakoora, District Anantnag, on various grounds enumerated in the petition.

The respondent No. 2 has filed the counter which, however, is not by the detaining authority himself.

I have heard the learned Counsel for the parties.

There are some inherent defects in the detention order impugned which knocks out its very bottom, and therefore, it may not be necessary to go

into the merits of each and every ground of detention.

Firstly, admittedly, the copy of the detention order has not been furnished to the detenu as is clear from the endorsement of the detaining

authority on the letter addressed to the Superintendent, Central Jail, concerned.

Secondly, the material as a whole which was placed before the detaining authority for his subjective satisfaction about the alleged activities of the

detenu has not been, admittedly, supplied to the detenu, as is clear from the endorsement mentioned above. He has been supplied only with

grounds of detention and the copies of some F1 Rs. Allegedly, some seizures of smuggled timber were made from the possession of the detenu,

which have not been applied to him. Similarly, the copies of the departmental cases registered by the Forest Department against him, have not

been supplied to him. The copies of alleged seizure memos upon which such cases were registered have also not been supplied to him.

Non-supply of the material as mentioned above has deprived the detenu of his fundamental right to make an effective representation against the

order of his detention, which is guaranteed to him under Article 22(5) of the Constitution of India.

Some allegations of mala fides have been made against the detaining authority in the petition. It has also been alleged that without application of

mind, he has passed the impugned order. Such allegations have not been controverted by the particular detaining authority, as he has not filed any

affidavit. The reply affidavit has been filed by his successor. He could not controvert the allegations of mala fides and non-application of mind,

which could be done only by that officer against whom such allegations were made. How could his successor know about the alleged mala fides or

the non-application of mind? These things could not be ascertained from the record which formed the basis of the reply affidavit.

In these circumstances, the detention order impugned suffers from unconstitutionality and must be quashed. The writ petition is, therefore,

allowed and the order impugned hereby set aside. The detenu is entitled to be set at liberty forthwith, unless his detention is required in connection

with any other case. The Superintendent, Central Jail concerned be informed accordingly.