Mohd. Iqbal Banday vs State and Others

Sunil Hali, Judge

Mohd Iqbal Banday has filed this petition through his father Ghulam Mohd Banday, seeking quashing of his detention Order No.

53/DMB/PSA/10 dated 12.03.2010 issued by District Magistrate, Baramulla u/s 8 of the Jammu and Kashmir Public Safety Act, 1978.

The grounds of detention reveal that detenue is a released militant of AI Jahad and works as a Painter and sign board writer by profession. He is

a determined anti-social element and has been always on the forefront to participate in antinational activities. The detenue was always provoking

people to observe strikes, processions against the Government and had caused law and order problems in and around Baramulla town. It is further

stated that on 19.2.2006, he attacked one Mohd Ramzan Gojri S/o Gh. Qadir Gojri R/o Drangbal working as Chowkidar in Bus stand, Baramulla

and inflicted serious injuries to him with a sharp edged weapon. In this regard FIR No. 268/2006 U/S 307, 324 RPC stands registered in Police

Station Baramulla. It is stated that he motivated and instigated the people in stone pelting, organized masses and youth in anti-government protests

and rallies and participated regularly in stone pelting on Government establishments, shops and plying vehicles. He organized public address

program for Syed Ali Shah Geelani, by preparing sign boards and in this regard case FIR No. 254/2009 U/S 13 ULA, 153 RPC was registered in

Police Station, Baramulla. On 19.02.2010 an unruly mob headed by the detenue resorted to stone pelting after Friday prayers in Main Chowk,

Baramulla resulting in injuries to some police personnel and damage to the public property. In this regard Case FIR No. 44/2010 under Sections

148, 149, 336, 427 RPC and 3 P.P. Damages Act was registered against him in Police Station, Baramulla. It is, in these circumstances that the

respondents have detained the detenu u/s 8 of the J&K Public Safety Act, 1978.

The petitioner has questioned the order of detention on the following grounds:

(a) That the detenue was in custody at the time of passing of the order of detention and has not applied for bail and there is no compelling reason

and cogent material on the basis of which detention order has been passed against the detenue, as such, detention order is bad in law.

(b) That the dossier and material referred and considered by the detaining authority have not been supplied to the detenue and only copy of

detention order has been served on him, which debars the detenue in making effective representation as contemplated under Article 22(5) of the

Constitution of India.

I have considered the submissions of learned counsel for the parties and perused the detention records produced by learned State counsel.

While examining the contention of the petitioner, it be seen that the grounds of detention clearly mentions that detenue was involved in

antinational activities by organizing demonstrations which were intended not only to disrupt the peace in the area but also to put the security of the

State in jeopardy. Specific instances have been indicated in the grounds of detention, more particularly in ground no.5, where it has been stated

that the detenue was heading an unruly mob of stone pelters which resulted in injuries to police personnel deployed for law and order and damage

to public property at main chowk Baramulla. Ground no.4 also makes a mention that the detenue was regularly involved in the stone pelting on

government establishments, shops and plying vehicles, particularly on hartal calls. It is further indicated that on 30.10.2009 the detenue organized

public address programe of Syed Ali Shah Geelani, by preparing sign boards, banners and even by providing his maruti van for organizing said

rally. An FIR in this respect already stands registered in Police Station Baramulla.

What is in fact conveyed in the detention order are the specific instances, places and dates so as to make the detenue aware about the reasons

for his detention.

The obligation of the detaining authority gets duly discharged once the specific circumstances relatable to the detenue's conduct are indicated in

the detention order.

The reply affidavit reveals that the detenue is a Painter and sign board writer by profession. He was always provoking people to observe strikes,

processions against the Government and had caused law and order problems in and around Baramulla town. On 19.2.2006, he is stated to have

attacked one Mohd Ramzan Gojri, working as Chowkidar in Bus stand, Baramulla and inflicted serious injuries to him with a sharp edged weapon,

for which FIR No. 268/2006 U/S 307, 324 RPC stands registered against him in Police Station Baramulla.

However, it be seen that after having said so, it was obligatory upon the respondents to provide the dossiers and the material on the basis on

which the detention order has been based, to the detenue. It is revealed from record that the order of arrest was served on the detenue on

16.03.2010 and the order of detention was explained to him in Kashmiri language, which he understands. The grounds of detention were handed

over to the detenue by the Superintendent of Jail, Udhampur. The grounds of detention, which consists of one leave, was served on the detenue on

16.03.2010. The receipt does not mention that the grounds of detention along with the dossiers and other material, was served on the detenue.

This is also not borne out from the receipt issued by the detenue. Even in their reply, respondents have no where stated that the dossier and other

material, on the basis on which the detention order was based, has been supplied to the detenue. The reply of the respondents to the specific plea

taken by the detenue in ground (e) is evasive and vague. It only mentions that the procedural safeguards have been observed in this behalf.

The purpose and object of providing the grounds of detention along with other material is intended to put the detenue to notice regarding the

material on the basis of which the detention order is based. This is only to ensure that he is able to make an effective representation against the

detention order. In absence of the material and the dossier prepared, he will not be able to make an effective representation.

For having said so, the detention order needs to be quashed.

I would, accordingly, allow this petition and quash Order No. 53/DMB/PSA/10 dated 12.03.2010 issued by District Magistrate, Baramulla.

Respondents are directed to set the detenue at liberty, if not required in any other case.

The detention records be returned to the State Counsel.

Before parting with the judgment, it is directed that all the Superintendents of Jails, where the detenues are required to be lodged, should

ensure that the detention order must be accompanied by the dossier and the material on the basis of which the order has been based. The

detention order along with dossier and other material, as aforesaid, must be served on the detenue against a proper receipt obtained from him,

giving the details of the material supplied to the detenue. Every detention order will suffer the same fate in case this requirement is not complete, as

has been found in all such cases. The District Magistrates are also directed to provide not only the detention order but the copies of dossier(s)

along with the material on the basis of which detention order is based, to the detenues.

Non-compliance of the directions mentioned hereinabove by the authorities concerned would be construed as an act violating the order of the

Court and necessary proceedings in this behalf will be initiated against them.

Let a copy of this judgment be served to all the District Magistrates and the Superintendents of Jails, where the detenues are to be lodged, for

compliance.