Mansoor Ahmad Mir, J.@mdashSubject, Ghulam Hassan Dar son of Ghulam Rasool Dar, resident of Samboora Teh. Pampore District Pulwama,
through his son, Khursheed Ahmad Dar, seeks to quash the detention order bearing No. 42/DMP/PSA/04 dated 22.11.2004 passed by
respondent No. 3 District Magistrate, Pulwama in exercise of powers in terms of Section 8 of Jammu & Kashmir Public Safety Act, 1978,
whereby the detenue stands detained in detention for a period of twelve months and lodged in District Jail Kathua on various grounds taken in the
memo of petition.
The respondents have filed reply.
Heard. Considered.
2. It appears that SSP Awantipora had, vide communication No. CS/D-26/2004/4153-55 dated 06.11.2004, made request to District
Magistrate, Pulwama to detain the detenue Ghulam Hassan Dar. It appears that District Magistrate has directed the SSP, Awantipora to make re-
verification. It is profitable to reproduce the contents contained in annexure-A herein;-
Please refer your No. CS/D-26/2004/4153-55 dated 06-11-2004 regarding the detention of Gh. Hassan Dar @ Husa, S/O Gh, Rasool Dar R/O
Samboora Tehsil Pampore.
02) Quite on the heels of receipt of dossiers people generally approached undersigned with their version about their non-involvement in the
militancy related activities. In some cases even the recoveries of weapons to have been claimed are disputed by maintaining that these allegations
are made in order to detain them. However, generally I go along with the reports of S.P. concerned unless substantially evidence is available to
controvert the information placed before me in the form of a dossier. In the instant case the accused is an elderly person and a delegation from the
village plead with conviction that the said person was not found to be in possession of Arms/ammunition as is alleged but did not dispute about his
political affiliation with Jamat-e-Islamia. In the context of detenue in the subcontinent perhaps Govt. policy is not to apprehend over ground
workers of secessionist organizations unless they are proved to be involved directly/indirectly in promotion of violence/militancy/hatred/disorder in
the State. Similarly the accused is reported to be around 65 years of age and it is not properly timed for detention on the eve of Idd. For these
reasons you are requested to have the matter reverified with regard to recovery of 2 Chinese hand grenades and 4 detonators from the accused.
3. In terms of annexure-C, i.e., impugned order, the detaining authority, District Magistrate, Pulwama had detained the detenue in terms of Public
Safety Act vide order dated 22.11.2004. Thus impugned order suffers from non-application of mind. It is profitable to reproduce the impugned
order herein;-
1. Whereas, on the basis of grounds of detention placed before me by Superintendent of Police Pulwama/Awantipora/CID CIK Srinagar vide No:
CS/D-21/2004/4129-31 dated 30-10-2004, I am satisfied that with a view to prevent Shri Gh. Hassan Dar S/O Gh. Rasool Dar R/O Samboora
Tehsil Pampore, District Pulwama from acting in any manner which is prejudicial to the security of the State, it is necessary so to do.
2. Now, therefore, in exercise of powers conferred by clause (a) of Section 8 of J&K Public Safety Act, 1978, I, District Magistrate, Pulwama
hereby direct that the said Shri Gh. Hassan Dar S/O Gh. Rasool Dar R/O Samboora Tehsil Pampore District Pulwama be detained and lodged in
District Jail Kathua for a period upto 12 (twelve) months.
4. Whether the grounds of detention were furnished by SSP, Pulwama or Awantipora or by CID CIK Srinagar is not spelled out in the impugned
order. However, the date is relevant which is given as 30th October, 2004. It is worthwhile to mention herein that in terms of annexure-A dated
06.11.2004, referred hereinabove, the District Magistrate has directed SSP Awantipora to make re-verification. Then how the detaining authority
has derived satisfaction in terms of report dated 30th October, 2004?
5. Record has been made available, but there is no such communication whereby it could have been concluded or said that SSP, Awantipora has
made verification after 06.11.2004 and on that basis detention order has been passed.
6. In terms of annexure-B, the detenue was asked to make a representation. It is profitable to reproduce relevant portion of annexure-B herein;-
Copy to the;-
1. Financial Commissioner Home Department J&K Government (Civil Sectt.) Srinagar/Jammu.
2. Superintendent, District Jail Kathua along with a copy of the grounds of detention and that of letter addressed to the detenue, which may be
communicated and delivered to him (detenue), within stipulated period of 5 days from the date of his detention except in a case covered u/s 13 of
PSA for which reasons are to be recorded in writing and time frame extendable by another 05 days against proper receipt under intimation to this
office along with confirmation of factum as to whether the detenue was informed about para 03 of the letter and whether he choose to or not to
make representation to the Government against the detention order.
7. While going through this communication, it appears that the detenue has been asked to make a representation in terms of Public Safety Act and
reference has been made to dossier dated 2nd November, 2004 received from SSP Pulwama but neither such communication has been referred in
the impugned order nor such communication is available on record. If communication was made by SSP Pulwama on 2nd November, 2004 then
why District Magistrate, vide annexure-A, directed SSP Awantipora to make re-verification. This shows that detaining authority has passed the
impugned order without application of mind. It was for the detaining authority to inform the detenue about the grounds of detention, dossier and
other material. All the communications and so called notice contained in annexure-B are vague and thus the petitioner has been deprived from
making representation.
8. The petitioner has also not been provided with the copies of the grounds of detention, warrant of detention and other material. The respondents
should have explained by filing an affidavit of the serving officer but that too has not been done.
9. As per the Photostat copy of the report of serving officer, the grounds of detention were read over and explained to the detenue in Kashmiri
language but the material relied upon in the grounds of detention i.e., FIR, seizure memo have not been furnished or explained to the detenue.
There is nothing on the file suggesting the fact that such material was supplied to the detenue in order to make an effective representation. Thus on
this count also, the detention order needs to be quashed.
In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, the Apex Court has observed as under;-
... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the
grounds are based flows from the right given to the detenu to make a representation can be made and the order of detention can be assailed only
when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also
disclosed and copies thereof are supplied to the person detained in his own language ....
10. In view of the above discussion, it is hereby held that detention order needs to be quashed.
Accordingly, the petition is allowed. The detention order is hereby quashed with the command to the State to release the detenue forthwith
provided he is not required in any other case. Record be returned back to Mr. M.A. Wani, Dy. AG.
