Nazir Ahmad Mir vs State And Anr

Ali Mohammad Magrey, J

The detenu, Nazir Ahmad Mir son of Gh. Mohi ud din Mir resident of Sarmarg Tehsil Zachaldara District Kupwara, through his father seeks quashment of detention order no. 30/DMK/PSA of 2019 dated 07.08.2019 purporting to have been passed by District Magistrate Kupwara, with consequent prayer for release of the detenu forthwith.

Heard learned counsel for the parties, perused the writ record and considered the matter.

Learned counsel for the parties argued in tune with their respective pleadings.

Learned counsel for the petitioner prayed for allowing of this petition whereas, learned counsel for the respondents vehemently argued and submitted that this petition be dismissed. Counter affidavit has not been filed though the detention record was produced.

The petitioner-detenu has challenged the order of detention mainly on the following grounds:

"a) that the respondents have detained the detenu on the basis of the communication dated 07.08.2019 of SSP Handwara and other incriminating material which the respondents have not provided to the detenu to enable him to make an effective representation against his detention order. The order of detention on this ground alone is liable to be set aside.

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

c) that the detenu has not been provided the translated version of grounds of detention so that he can make an effective representation".

In the present case also, there has been failure to communicate the grounds to the detenu in a language which he understands, which vitiated the detention order itself.

In the detention order the detaining authority has also stated that, "Sr. Superintendent of Police, Handwara vide communication dated 07.08.2019 has produced material record such as dossier and other incriminating material". The detaining authority on the basis of these documents has entered into satisfaction for ordering detention of the detenu.

The detaining authority has not spelt out as to what were "other incriminating material". The detenu has thus been not supplied complete documents which has affected his Constitutional rights guaranteed under Article 22(5) of Constitution of India to make effective representation against his detention.

The detention order is rendered illegal in view of the law laid down by Hon'ble Supreme Court in case titled "Wasiud din Ahmad v. The District Magistrte, Aligarh, UP and ors" , reported in AIR 1981 SC Page 2166 has ruled as under:

"13.This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperative indicated in Art. 22(5) are twofold:

(1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made , and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what means the right of making an effective representation. Where certain documents are relied upon in the grounds of detention the grounds would be incomplete without such documents. The detenu, therefore, has right to be furnished with the grounds of detention along with the documents relied upon."

For the above stated reasons, this petition is disposed of in the following manner:

By issuance of writ of certiorari, detention order no. 30/DMK/PSA of 2019 dated 07.08.2019, purporting to have been passed by District Magistrate Kupwara, is quashed with direction to respondents to release the detenu Nazir Ahmad Mir son of Gh Mohi ud din Mir resident of Sarmarg Tehsil Zachaldara, District Kupwara, forthwith from preventive custody.

Disposed of along with all connected CMs. Detention record be returned to the learned GA.