MUKHTAR AHMAD Vs. STATE OF J AND K

JUDGEMENT

(1.) - This Letters Patent appeal is directed against the judgment dated: 22-4-2000 passed by the learned Single Judge in Habeas Corpus Petition No. 193/99. The appellant who is a Junior Engineer grade 1st in the Irrigation and Flood Control Deptt. is alleged to have been arrested by the police on 13-8-1999 and respondent No. 2 herein vide order No. F 1201DM! PSA./Deptt/99/1954-60 dated: 21-8-1999 (Passed under Section 8 of the Jammu and Kashmir Public Safety Act. 1978: (hereinafter to be referred to as the Act) detained him for a period of one year. The appellant challenged the above said order of detention through the medium of Habeas Corpus petition (No. 193/99) which was dismissed in terms of the impugned order. The learned Judge has held that non-supply of the copy of the F.I.R did not prejudice the appellant in making the representation as the copies of other material which were supplied to him were sufficient for the purpose of making a representation. It was further held that the grounds of detention had revealed that detenu had been released on bail and the detaining authority was compelled to pass the impugned order in order to deter the detenu to resume antinational activities.

(2.) The judgment has been challenged on the grounds that the order of detention is solely based on the dossier received from the Sr. Superintendent of Police. Anantnag and no copy of it was provided to the appellant. Neither the copy of the grounds of detention nor a copy of the dossier was ever supplied to the detenu within the prescribed period under the Act. The detenu was never informed that he had a right to make a representation to the Government against his detention. The detenu was already in legal custody while facing the trial for the commission offences registered under FIR Nos. 44/99. 219/99 and 257/99 and there could be no reason for invoking the provisions of the Act. Heard the arguments.

(3.) The learned counsel appearing for the appellant has reiterated the grounds of appeal in his arguments and stressed that neither in the grounds of detention nor in the impugned order any compelling reason has been assigned which could be a basis for detaining the detenu under the relevant provisions of the Act. Non-supply of the copies of the dossier. FIRs and grounds of detention is a valid ground to term the impugned order as invalid. In order to substantiate his argument. the learned Counsel cited the case of Sophia Ghulam Mohmmad. Bhan v. State of Maharashtra. In this case detenu was found to be in possession of diamonds at the airport from where he was alleged to have been trying to smuggle those out of India. Documents were seized from the possession of the detenu and opinion was formed on the basis of those documents that he was a carrier for some smugglers and on the basis of that satisfaction the competent authority had passed the detention order which was quashed by the apex Court as illegal because copies of those documents were not supplied to the detenu. In the instant case no record has been produced by the respondents to establish the fact that copies of the above stated documents were supplied to the detenu. It is admitted position of law that copies of documents on the basis of which the detaining authority forms the opinion to detain a detenu are required to be compulsorily supplied to the detenu forthwith in order to enable him to make a representation otherwise the detention is illegal. This legal requirement was observed in this case in breach rather than in observance. There is no record which suggests that the detaining authority had made subjective satisfaction at the time of passing the impugned order. In this view of the matter, we accept the appeal and set-aside the impugned judgment. The respondents are directed to release the detenu forthwith provided his detention is not otherwise required in accordance with law. Appeal allowed.