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Judgment
Noticing the activities of the detenue prejudicial to the security of the State the detaining authority has passed the order of detention impugned,
so as to deter the detenue from continuing with such activities. Aggrieved there of instant petition has been filed on behalf of the detenu by his
father.
The grounds of detention as formulated would reveal that the detenu is an anti social element, instigates the youth of Baramulla to indulge in
stone pelting. On 12.09.2008 detenu alongwith other associates while pelting stones were arrested in connection with the case FIR No. 138/08
Police State Baramulla. Again for the similar activities on 07.10.2008 on more case was registered as FIR No. 165/08 Police Station Baramulla.
On 11.02.2009 same activities were repeated, so again a case was registered as FIR No. 31/09 Police Station Baramulla. On 29.06.2009 the
detenue is alleged to have again resorted to same activities, in the process one Motor Cycle was set ablaze and an abortive attempt to set ablaze
one police vehicle. In the process of stone pelting number of CRPF and Police personnel including SHO got injured and case was registered under
FIR No. 141/09 for commission of offences under sections 435, 307, 147, 148, 353, 435,307, 332, 336, 427 RPC, so was arrested. While in
custody detention of the detenu under the provisions of Public Safety Act was found imperative, therefore, order of detention impugned dated
25.07.2009 approved by the Government on 4.8.2009, has been executed on 1.9.2009.
The contention that the detaining authority has not applied its mind, is substantiated by the record itself. In the order of detention dated
25.07.2009 it is mentioned by the detaining authority that on the basis of grounds of detention placed before him by the SSP Baramulla,
satisfaction is derived to the effect that the detention is necessary so as to prevent the detenu from acting in any manner prejudicial to the security of
the State. Further more has also mentioned that the detenu shall remain detained for Twelve (12) months.
The three circumstances to be mentioned below as appear from the order impugned, indicate lack of non application of mind:
iv) Grounds of detention are shown to have been placed before the detaining authority by the SSP, when the SSP is only required to collect the
material and to place same before the detaining authority for formulation of the grounds of detention based on which subjective satisfaction has to
be derived;
v) It is mentioned that it is necessary to prevent the detenu from acting in any manner prejudicial to the security of the state, when the activities of
the detenu as alleged are such, which if taken correct can be termed to be prejudicial to the maintenance of the public order;
vi) Period of detention has been fixed as twelve (12) months, when the detaining authority (District Magistrate) has no such power to fix the period
of detention.
The order of detention tested on the aforesaid circumstances in the birds eye view warrant its quashment.
Order of detention is shown to have been executed on 01.09.2009. No explanation has been tendered as to why the order of detention has not
been executed from 04.08.2009 till 01.09.2009, when the detenu was available.
Copy of the grounds of detention, contains allegations as reflected in the dossier prepared by SSP and it is because of that, in the order it has
been mentioned that grounds of detention as placed by the SSP detention has become imperative, but the detaining authority has not applied its
mind, as the material forming base for the dossier is not shown to have been placed before him, same is not also available on the detention record,
nor any such material has been supplied to the detenu, which in turn has also impaired the detenu from making any effective representation, so
infringement of right guaranteed under Article 22(5) of the Constitution.
It shall be quite apt to quote para28 and 29 of the Judgment titled Tahira Haris etc v. Government of Karnataka and other in AIR 2009 SC
2184.
Our constitution provides adequate safeguards under clauses (5) and (6) of Article 22 of the detenu who has been detained in pursuance of
the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other
materials relied upon in the grounds of detention without any delay.
On proper construction of clause (5) of Article 22 read with section 3(3) of COFEPOSA Act. It is imperative for valid continuance of
detention that the detenu must be supplied all documents, statements and other material relied upon in the grounds of detention. In the instant case,
admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenue and the detenue was prevented from
making effective representation which has violated his constitutional right under clause (5) of Article 22 of the constitution.
Applying the principal as has been laid down, the order of detention impugned cannot be sustained, as such is quashed. Detenu namely Sajad
Ahmad Khan S/o Nazir Ahmad Khan R/o Jamia Mohalla Tehsil and District Baramulla be released forthwith, provided he is not required in
connection with any other case.
The detention record as produced shall be returned back to the counsel for the respondents.